Introduction Food is a basic human need

Food is a basic human need. However, food can turn into poison if it is not safe. Unsafe food

has long been a concern in Indonesia and has become more alarming due to its rampant spread.1

In Indonesia, food usually becomes dangerous because it is adulterated and contaminated. Both

food adulteration and food contamination involve the presence of a substance that is not

intended to be in a food product. However, food adulteration commonly is done purposely,

whilst contamination is unintentional.2

Food adulteration is generally motivated by profit. Food producers perform food adulteration

by adding sub-standard ingredients as substitutions or hazardous materials to increase weight,

give it false strength, or improve its appearance. These actions cause the natural quality of food

to deteriorate. Adulterated food can be found in almost food seller, including traditional

markets, street vendors and even in restaurants. Food processors, manufacturers, handlers, and

restaurant owners are all involved in this unethical practice. Moreover, home-cooked food can

also become unsafe because of the inclusion of adulterated raw materials.

1 The poor condition of food safety in Indonesia can be seen from the large number of contaminated food

found. Food containing microbiological contaminants, hazardous chemicals, heavy metals, mycotoxins, and

pesticide residues making the food unfit for consumption See NADFC, ‘Government Agency Performance

Accountability Report, Directorate of Food Safety Surveillance and Counselling 2017’ 8-9. In addition, alarming

food safety issues in Indonesia are marked by the many cases of poisoning due to contaminated or adulterated

food. The NADFC report in 2019 showed that there were 6205 cases of poisoning in Indonesia. This number was

obtained only from 257 hospitals and 6 public health centre out of a total of 2813 hospitals in Indonesia. See

NADFC, ‘Annual Report of Food and Drug Data and Information Centre in 2019’ 128-129.

2 Markus Lipp, A Closer Look at Chemical Contamination (1 August 2011) Food Safety Magazine

<https://www.food-safety.com/articles/3759-a-closer-look-at-chemical-contamination>.

Food contamination results from natural consequences of a process.9 It also can be a

consequence of a poor-quality control.10 Contaminated food may be regarded as food that is

spoiled because it contains microorganisms, bacteria, or germs that make it unfit for

consumption. The stages of food processing, packaging, distribution, and storage can also

contribute to food contamination.12 In food processing, food can be contaminated if the

surfaces used for food processing are contaminated with germs. In food packaging, packaging

carton can be a source of food contamination. If it is not stocked properly, microorganism can

grow an becomes contaminants. In food transportation, contamination can occur if frozen food

is left on a loading dock for a long time in hot weather. The high temperatures can cause

bacteria to grow.15 While in food storage, food can be contaminated if cooked food contacts

raw food because they are not stored separately.

The fraudulent acts and the ignorance of food producers and handlers are endangering

consumer’s health.17 In addition, these food safety issues have also affected the national

economy. Therefore, Indonesia needs to take immediate actions to solve this issue. Moreover,

every person has the right to food, and it needs to be respected, protected, and fulfilled. The

part below discusses the state obligation to ensure safe food for the people in Indonesia.

9 For example, alcoholic beverage can be contaminated with biogenic amines during the production process

(fermentation). Another example, the growth of aflatoxin which produces fungus can contaminate chillies or red

pepper during storage. See D. Banerjee; S. Chowdhary; S. Chakraborty; R. Bhattacharyya, ‘Recent Advances in

Detection of Food Adulteration’ in Rajul Kumar Gupta, Dudeja and Singh Minhas, Food Safety in the 21st Century

(Public Health Perspective, 2017) 145, 145. 10 Lipp, above n 2.

State Obligation to Protect Human Rights

The right to food is acknowledged as a fundamental right of all humankind through the

Universal Declaration of Human Rights 1948 (UDHR) Article 25(1): ‘Everyone has the right

to a standard of living adequate for the health and well-being of himself and of his family,

including food’. As a follow-up action to UDHR, the right to food is specifically recognised in

International Covenant on Economic, Social and Cultural Rights (ICESCR 1966), which in

Article 11 states that ‘The States Parties to the present Covenant recognise the right of everyone

to an adequate standard of living for himself and his family, including adequate food’. The

United Nations Human Rights Office of the High Commissioner (OHCHR) defines ‘adequate

food’ as the food that satisfy the dietary needs based on the age, living condition, health,

occupation, and sex of individual’.

Food safety is also recognised as an integral part of food security as stated in the World Food

Summit 1996 declaration which reads, ‘Food security exists when all people, at all times, have

physical, social and economic access to sufficient, safe and nutritious food to meet their dietary

needs and food preferences for an active and healthy life’.22 Food safety is one of the supporting

elements in addressing food security and nutrition because of the relationship between food

and health. The United Nations (UN) mentioned that human rights are interconnected, meaning

that if one right is not fulfilled it will affect access to other rights. For example, if people fail

to access safe food, it may cause them to become ill or they may lose his or her right to life.

Each State is obliged to ensure food safety for its people, as stated in Article 12(1) of the

International Covenant in Economic, Social and Cultural Rights (ICESCR) 1996 that declared

‘The State Parties to the present Covenant recognise the right of everyone to the enjoyment of

the highest attainable standard of physical and mental health’. Further, in General Comment

No. 14 (No.11) : ‘The Committee interprets the right to health, as defined in Article 12.1, as an

inclusive right extending not only to timely and appropriate health care but also to the

underlying determinants of health, such as access to safe and potable water and adequate

sanitation, an adequate supply of safe food, nutrition and housing...’.

In addition, Guideline No. 4 ‘Voluntary Guidelines to Support the Progressive Realisation of

the Right to Adequate Food in the Context of National Food Security’ states that ‘States should

provide adequate protection to consumers against fraudulent market practices, misinformation

and unsafe food’. Moreover, Guideline No. 9 enunciates that states should ensure that the food

produced, both locally and imported, should comply with national food safety standards. The

state should establish a food control system to decrease the risk of foodborne disease using risk

analysis and a supervisory mechanism. The state should also take action to shorten institutional

procedures for food safety and adapt scientific food safety standards, including for

contaminants, residues and adulterated food. The state should also prevent contamination from

industrial and other pollutants in the production, distribution, storage, handling and foodselling

stages.30 The state should also work together with private stakeholders in food safety

supervision. Further, the state should assist farmers and business operators to not harm

consumers. Moreover, the state should protect consumers from unsafe or adulterated food

because of misrepresentation in the packaging, labelling as well as in the advertisements of

food.34

Through Act 11/2005 on Ratification of International Covenant on Economic, Social and

Cultural Rights (ICESCR) 1966, Indonesia has ratified the ICESCR. Therefore, Indonesia has

an obligation to ensure food safety. Indonesia has accommodated food safety through various

laws and regulations as well as by appointing and forming food safety related bodies to ensure

safe food in Indonesia. Nevertheless, food adulteration and food contamination are still

rampant and increasingly become a threat for public health in Indonesia. This means that the

state is potentially in breach of its obligation to protect the human rights of its citizens by failing

to ensure safe food.

This thesis intends to investigate the legal, regulatory, and enforcement framework of food

safety in Indonesia. This investigation is carried out to find the root problems that hinder the

effective regulation of food safety in Indonesia. The discussion is focused on the performance

of the National Agency for Drug and Food Control (NADFC) that has been established as the

primary regulator of food safety in Indonesia.

To provide recommendations to improve the effectiveness of food adulteration regulation in

Indonesia, this thesis examines food safety systems in other jurisdictions, particularly New

South Wales (NSW), Australia. The possible recommendations obtained from the analysis of

food safety system in NSW are hoped to give insights to help Indonesia to ensure safe food for

the public.

This rest of this chapter introduces the study by providing the background of the research. It

briefly describes several introductory matters regarding the present research. Section 1.1 gives

an introduction to the chapter. Section 1.2 contains a brief overview of Indonesia and its food

safety issues. Section 1.3 describes several factors and circumstances that lead to food safety

issues in Indonesia. Section 1.4 explains the theoretical framework for the study. Section 1.5

explains the aims and objectives of the study and is followed by Section 1.6 that lists the

research questions and sub-questions. Section 1.7 provides a literature review of the topic,

while section 1.8 explains the rationale for the study. Section 1.9 discusses the scope of the

study, whilst the research methodology is discussed in Section 1.10. Section 1.11 provides the

chapter overview of the thesis. Section 1.12 summarises and concludes the chapter.

1.2.Indonesian Food Safety Issues

Indonesia is an archipelago country which has 16,056 islands, 300 ethnic groups, and

approximately 270 million people,38 which makes Indonesia the world’s fourth most populous

nation. Indonesia shows impressive economic growth since overcoming the Asian financial

crisis in the late 1900s.40 As a result, today, Indonesia becomes the largest economy in

Southeast Asia.41

In addition, Indonesia has successfully decreased its poverty rate more than half since 1999.42

Due to the significant developments, in 2020, Indonesia upgraded its status from developing

country to upper middle-income country43 or can be called newly industrialised country.

Nevertheless, food safety issues are still a frightening threat to consumers in Indonesia.

Food adulteration and food contamination are two common issues that are often found in

Indonesia. The points below discuss the nature of food adulteration and food contamination in

Indonesia.

1.2.1. Food Adulteration

The act of food adulteration has been found since a long time ago. In the early 19th century,

adulterated food became a major source of poor quality of life in Britain. In ancient Athens,

there were laws that prohibit the adulteration of wines. In Rome, spices were adulterated due

to its extreme price.

In today’s world, the case of food adulteration is increasingly rampant. In 2008, infant formula

in China was adulterated using melamine to increase the protein content in it. Six babies died

and there were 52,000 infants hospitalised due to this fatal case. In addition, 250,000 children

40 Ibid.

41 Ibid.

42 Ibid. 43 Umar Serajuddin and Nada Hamadeh, ‘The World Bank Country Classifications by Income Level: 2020-

2021’ Umar Serajuddin and Nada Hamadeh on World Bank Blogs (I July 2020)

<https://blogs.worldbank.org/opendata/new-world-bank-country-classifications-income-level-2020-2021>.

have suffered urinary and mild kidney problems.50 It also caused economic loss of 58 million

Euro due to the health system expenditure.51

Commonly, food adulteration is done using prohibited non-food chemicals, artificial colouring,

and rotten ingredients.52 The act of ‘bulking up’ using low-cost ingredients is also considered

food adulteration. For example, food producers attempt to reduce the production cost by

mixing of inferior ingredients, preserving using harmful chemicals to falsely gain high prices

for substandard products. In Indonesia, food is intentionally adulterated in three main ways, as

below:

a. Food ‘Bulking Up’

Some food businesses intentionally exploit consumer behaviour by ‘bulking’ up a food product

using inferior quality ingredients. For example, the mixing of cow milk with water, coconut

milk, coconut water or starch. The addition of substances aims to increase bulk or weight,

lengthen shelf life, or make the food appear better or of greater value than it is. However, the

addition of these ingredients reduces the nutritional value of food and often turns the food

poisonous.

b. Misuse of Food Additives

Food additives are ingredients added to food to influence the nature or shape of food.58 They

are substances that are not usually consumed as a food by itself. The use of good and safe

50 Ibid. 51

Ibid.

52 S M Solaiman, ‘Rampant Food Adulteration in Bangladesh: Gross Violations of Fundamental Human Rights

with Impunity’ 2013 Asia Pacific Journal on Human Rights and the Law 14 (1-2) 1,6.

food additives will provide good benefits for improving the quality of food products produced.

However, it can pose a dangerous risk to public health if producers (i) use prohibited and

nonfood grade additives and (ii) use additives with inappropriate measurements.

The example of food adulteration using excessive food additives is fake honey. The high value

of honey leads to a fraudulent act of business. Honey is commonly adulterated using sugar to

make it like real honey. In Indonesia, the use of sucrose in honey is not prohibited, unless it is

added following the standard, namely 10 per cent of the product. However, the sugar content

in fake honey in Indonesia can reach 47 per cent. This level of sugar can be harmful if

consumed by vulnerable people such as children or people suffering from diabetes. Other

examples of adulteration with non-food additives include the misuse of melamine to increase

the essential nutrient count of a food product, and the addition of sand, chalk powder, stone or

brick powder to increase food volume.

c. The Use of Harmful Materials

In addition to increasing food weight and giving preserving the food, food adulteration is also

done to improve the appearance of food to attract consumers. Formalin is a type of chemical

that is often misused in food production in Indonesia. Commonly, formalin is misused in wet

noodles,65 fish, fruits,67 and tofuas a preservative to avoid the perishable nature of food.

Formalin is a component of numerous antiseptics, deodorising agents, fumigants and

antiwrinkle agents for fabrics. Consuming formalin can cause irritation of the respiratory tract,

vomiting, dizziness and a burning sensation in the throat. Long-term use of formalin can be

harmful for human’s health due to its carcinogenic properties that trigger cancer cell growth.70

Apart from formalin, fraudulent businesses are often found using Rhodamine B as a colouring

agent in food such as chili sauce and crackers. Rhodamine B is a synthetic dye commonly used

as a textile dye, therefore, it is prohibited for use in food production. Businesses use Rhodamine

B as a food colouring because the colouring agent is easily accessible, has attractive colours,

is durable and cheap compared to legal food colouring and as such can produce greater profits.

Unfortunately, Rhodamine B is a carcinogenic substance, so long-term use can cause cancer.

During Ramadan (fasting month of Muslims), Christmas and New Year, the number of cases

of food adulteration increases due to the surge in demand for food. For example, during

Ramadan 2018, NADFC found that 712 food items sold in Indonesia contained hazardous

ingredients, 282 of them contain formalin, 223 contain borax, 226 contain Rhodamine B, and

15 contain Methanyl Yellow. This number increased from Ramadan in the previous year that

was only 600 findings including, 192 containing formalin, 183 containing borax, 220

containing Rhodamine B, and 5 containing Methanyl Yellow.77 Another example is when the

demand of beef increases during Ramadan, cattle raisers ‘bulk up’ the cows by adding water

to the cow’s body. The weight of the cow will increase 30% from its initial weight. As a result,

the quality of the meat becomes poor and decays easily due to unnatural absorption of water

into the meat cell. This can damage the levels of protein and other substances in the meat.80

1.2.2. Food Contamination

Food contamination is a serious public health issue around the globe which results in foodborne

illnesses.81 As food production, transportation, and distribution become more global, the

problem of food contamination becomes more severe as ‘food contamination that occurs in one

place may affect the health of consumers living on the other side of the planet’. Food

contamination happens because of different situations namely raw materials, food

transportation, cleaning processes, heating steps, food packaging, and food storage.

There are three types of food contamination, namely chemical, physical, and biological

contamination. Chemical contamination refers to the food that has been contaminated by

chemical substances unintentionally added to it. Some examples of chemical contamination

are when chemicals used for cleaning are not properly labelled or stored separately so they

contaminate the food in the kitchen. Chemical contamination in food can also happen naturally,

for example, some fish may contain toxins due to the contamination in the ocean, or plants may

be contaminated by pesticides or heavy metals from the soil.

Physical contamination in food means that food is contaminated by foreign objects that can

cause illness due to the dangerous biological contaminants they may carry. The examples of

physical contamination are bone slivers, ceramic, metal, fingernails, wood, plastic, and glass

fragments that could contaminate food at any stage of the supply chain.

Biological contamination means the food that has been contaminated by living things,92 such

as humans (for example, saliva, virus, blood, or faeces) pests, algae, fungi, worms, rodents, or

microorganisms.93 In addition to those contaminants, bacteria is a common causes of food

81 Katepogu Kamala and Venkobarao Pavan Kumar, ‘Food Products and Food Contamination’ in Alina Maria

Holban and Alexandru Mihai Grumezezcu (ed), Microbial Contamination and Food Degradation, Handbook of

Food Bioengineering (2018) 1, 1.

poisoning worldwide. For example, in October 2021, in Nganjuk, East Java, one person died

and 45 people were hospitalised after eating microbial contaminated food served by a catering

service at a celebration. In addition, in February 2022, the similar contamination has caused

hundreds of residents of Alalak Island and Sewangi Island in Barito Kuala Regency

experienced vomiting and dizziness after eating soup provided at an event.96

Minamata disease became one of the most serious diseases in Japan caused by water pollution

in the twentieth century (1953- 1975). The incident was caused by the methylmercury (MeHg)

contamination due to the improper waste management of the Chisso Co.Ltd that were operating

a chemical plant. The toxin was accumulated in shellfish and fish that were eaten by the local

population. Due to the poisonous shellfish and fish they consumed, the local population

suffered from various symptoms and diseases, including constriction of the visual field, ataxia,

auditory and sensory disturbances, dysarthria, tremor. In addition, the pathology findings

showed that there was damage of the central nervous system, particularly the cerebral cortex

and cerebellar cortex.

In 2015, World Health Organisation (WHO) reported the disease burden caused by 31

foodborne agents such as toxins, parasites, bacteria, viruses, and chemicals at global and

regional level. While in the 2018, Word Bank report on the economic burden of the foodborne

diseases revealed that there were USD 95.2 billion productivity loss per year, and USD 15

billion annual cost to treat foodborne diseases due to foodborne illness in low and middle-

income countries.

Some types of contaminants in food are not dangerous if they are still in safe limits. For this

reason, the Indonesian government has issued numerous standards related to food

contamination limits. However, there are various types of contaminants that are absolutely

prohibited from being contained in food because they are very dangerous and can be toxic to

humans, for example mercury (Hg), lead (Pb), cadmium (Cd), and arsenic (As).

One of the keys to food safety is to perform safe and hygienic practical measures to prevent

food contaminations during food production or handling. Research by Arisanti, Indriani, and

Wilopo explains that the most contributing factors to cases of food poisoning from catering

services are food processing related to pathogen contamination, too long preparation before

serving, and inappropriate food storage. The risk of poisoning is increasing due to the lack of

attention to sanitation facilities such as hand washing facilities, cooking utensils, and clean

water supply.

The rampant food adulteration and food contamination cases in Indonesia are caused by several

problems. The sub-section below explains some circumstances and factors that can lead to the

alarming food safety issues in Indonesia.

1.3.Factors and Circumstances that Lead to Food Safety Issues in Indonesia

There are several factors and circumstances involved in the rampant food safety issues in

Indonesia, namely regulatory failure, demand for cheap food, the rapid growth of small-scale

food industry, lack food safety awareness of food manufacturers, and lack of consumer’s

knowledge towards food safety. The parts below discuss those contributing factors to food

adulteration in Indonesia.

a. Ineffective Legal, Regulatory, and Enforcement Framework

Despite the existence of laws and regulations for food safety in Indonesia, the wrongful acts of

food business have not been eradicated effectively. This may be partly due to flaws in the legal

framework for food adulteration in Indonesia. The framework is affected by multiplicity of

rules, duplication of rules, and overlapping rules. This causes confusion in the public.

Moreover, the legislation cannot be easily accessed by the public.

The involvement of numerous food safety related bodies also becomes a factor that inhibits

successful food adulteration regulation. Lack of coordination between these bodies is a critical

issue in the regulation of food adulteration in Indonesia. In addition, NADFC basic needs such

as funding, human resources, and facilities is not sufficient. Therefore, NADFC cannot

effectively carry out its functions.

Several regulatory loopholes also hamper the fulfilment of the right of consumers to get

compensation for the damages he or she suffers. The criminal liability regime in Indonesia is

not strong enough to criminalise fraudulent business actors. In addition, the enforcement of

food adulteration laws and regulations in Indonesia is facing some challenges. These regulatory

failures are analysed in Chapter 3, 4, 5, 6, and 7 of this thesis.

b. Demand for Cheap Food

Food is not just to provide satiety. The body also needs enough nutrients to help growth, help

cell regeneration and heal wounds, produce nutritional energy, body activity. Consuming safe

and quality food will bring a person to have a healthy and secured life. Consumers who are

aware of the importance of safe foods will pay attention to the quality of the food they consume.

They will be more careful in choosing food products and will make purchasing decisions by

considering the safety guarantees of these food products. However, consumers behave and

make decisions in different ways for different reasons.

For some people in Indonesia, food prices are an obstacle to obtaining good quality of food.

For the poor, food quality is not the main target they are looking for in consuming food, because

they prioritise a sense of satiety with affordable prices. People living in poverty have little

choice but consume whatever they can afford. Although in general the Indonesian economy is

improving, the number of poor people in Indonesia is still quite large. The Central Bureau of

Statistics Report shows the number of poor people in Indonesia in 2019 was 24.79 million

people. This number increased in 2020 by 2.76 million people to 27.55 million people. This

situation is used by business actors to conduct fraudulent act by producing low quality, unsafe

products for the low-income people. For these consumers, low price may be preferable,

therefore encouraging business actors to switch to cheaper raw materials. Unfortunately, cheap

raw materials usually also mean low quality. In addition to using substandard ingredients,

business actors also often use prohibited chemicals to make the food they produce look like

quality food, for example by adding textile colouring to carcass chickens to make it look fresh.

In addition, the high market demand for the cheap food products has created opportunities for

Micro, Small and Medium Enterprises (MSME) to grow up and fulfil the demand of

lowincome earners. The sub-section below discusses the emergence of this small-scale food

industry and its relation to food adulteration.

c. The Rapid Growth of the Small-Scale Food Industry and its Impact on Food Safety

The consumer’s low purchasing power has created opportunities for MSME to grow and fulfil

the demand of low-income earners. The rapid growth of food businesses in Indonesia can be

seen positively as it can provide jobs as well as help with food security. However, the

proliferation of this industry has increased the potential for health risks due to limited capital

and professionalism of business actors.124 In addition, food products are often processed in

traditional ways that may include low processing abilities and knowledge acquired from

generation to generation, and low levels of sanitation and hygiene. Commonly, small industries

are not equipped with clean water facilities, appropriate equipment, and only sell their products

at the local markets.125

Food sold at very low prices and in poor areas are often unsafe.126 For example, in Indonesia,

food adulteration can be easily found in street food vendors. Street food has become an integral

part of people’s lives in Indonesia, both in urban and rural areas. Street food is cheap, easy to

get, and fits the tastes of most people.128 The presence of street vendors has become part of the

lifestyle of people who need fast food because of their limited time. However, it is difficult to

say how safe street food is as there are many factors associated with its safety and quality. The

handling is often unhygienic, allowing food to be contaminated with toxic microbes, as well

as unauthorised use of food additives. Tests conducted by NADFC from January to August

2014 found that nearly one third of street food sold in 23,500 primary schools in Indonesia was

contaminated with harmful microbes. The tests also found the use of hazardous materials and

food additives that are strictly prohibited by law.

This supports findings by Lamuka, who found that 20-25% of household food expense in

developing countries is spent in street food vendors. In these countries, street food vendors has

an important role in the food supply chain due to their convenience and cheap price.136

Unfortunately, Lamuka argues that the safety of street food supply chains in developing

125 Putut Har Riyadi, Azis Nur Bambang, and Tri Winarni Agustini, ‘Analysis of Food Safety Policy for

Fisheries Products in the North Coast of Central Java and Yogyakarta Special Region’ (2007) Diponegoro

University Institutional Repository 30, 32. [Translated from Indonesian Language].

126 Bambang Hermanu, ‘Development of an Integrated Food Safety System in Realising the Effectiveness

of the Implementation of the Home Industry Food Product License: A Multi-Disciplinary Study to Achieve

Maritime Axis in People's Welfare-Based Economic Development’ 15. [Translated from Indonesian Language].

countries has become concern due to insufficient access of water, sanitary, garbage disposal

facilities. Therefore, it raises the risks of foodborne illness caused by misuse of food additives,

microbial contamination, and food adulteration.

d. Lack of Consumer and Food Business Awareness

Public knowledge and awareness about food safety plays an important role in combating unsafe

food. However, the level of consumer awareness in Indonesia regarding the importance of food

safety is lacking. Consumers in Indonesia still prioritise taste and quantity over quality and

safety, and the knowledge of food business in Indonesia regarding safety issues and food safety

regulations is still limited. Many business actors use hazardous materials without knowing that

the material is dangerous and prohibited by law. These issues indicate that the awareness and

knowledge of consumers and businesses about food safety must be improved. This issue is

discussed in detail in Chapter 6 of this thesis.

The factors and circumstances discussed above, along with the legal and regulatory issues that

will be analysed in the subsequent chapters, have contributed to widespread food adulteration

and food contamination cases in Indonesia.

1.4.Theoretical Framework of the Study

The discussion above shows that food adulteration is very detrimental to the public health. For

this reason, the government needs to act to combat food adulteration in Indonesia. This is in

line with Pigou who developed a theory called the public interest theory that assumes that

government is competent of correcting market failures through regulation. Based on this

theory, intervention by governments aims to minimise fraudulent practices, to improve the

product quality, to prevent accidents (such as food poisoning) by controlling prices and

enforcing safety standards.

In terms of food safety, public interest covers convenient access to safe, healthy and affordable

food. Unsafe food that can cause health problems, can degrade the competitiveness in

international market, and can cause economic loss is a market failure. These market failures

require government intervention in the form of regulation, so that the issues can be solved to

meet community needs.

Orbach explains that regulation is an intervention of a society carried out by government.

Such intervention is performed based on the incapacity of the people to regulate themself.

Regulation can help regulate malfeasance of the different market participants such as growers,

farmers, producers, suppliers, distributors or sellers of foodstuffs. Practically, the intervention

of regulators can help identify fraudulent and harmful behaviour of the people. Further,

regulators can also evaluate the quality of goods offered to the public for consumption.

Ogus describes a clear explanation of ‘regulation’ as follows:

a. Regulation involves the idea of regulating with a directive function. It requires the

people to behave based on the regulator’s order to achieve the expected outcomes, and

imposes sanctions on wrongdoers;

b. Private agreement between parties concerned cannot overreach the regulation as it is

public law which is enforced by government;

c. Government plays a basic role in the formulation and enforcement of the regulation, so

the regulation is centralised.

In the context of food safety, governments interfere in the form of related laws and regulations

prescribing specific requirements about various issues, including food material, processing,

transportation, packaging, labelling, contamination and maximum limits, to prevent

unfavourable effects of unsafe food.

Critics towards the Public Interest Theory

Public interest theory of regulation has been subjected to some criticisms, especially by the

people who oppose government regulation. Stigler and Posner in Shleifer criticised three

elements of the theory. They argued that first; the market and society is capable to lessen and

resolve market failures without the help of government regulation.148 Second, private litigation

is sufficient to manage conflicts in the society. Lastly, regulations would worsen the situation

instead of helping due to the incompetent and corrupt of government regulators.

While in Domas, Stigler and Posner assumed that the performance of the regulatory process is

poor.151 Posner stated that although regulatory agencies may be established for a useful

purpose, these agencies are mismanaged and fail to achieve their goals. Posner considered that

the regulatory bodies failed in carrying out their tasks, and hence, it is not surprising that the

agencies do not achieve their goals. Additionally, legislative supervision may be burdensome

because it is costly.

Their criticism is essentially theoretical, because one can hardly find any market which is well

disciplined based on the market forces alone. Government regulation in practice is warranted

by the greediness of business people and gullibility of stakeholders in food markets. Therefore,

their criticism against the public interest theory is least relevant to the present study. Moreover,

the above cases demonstrate ample evidence that the market has failed to control the problems

and eventually harms the people. Therefore, to manage disruptions, the society can receive

more advanced government intervention.155 Most importantly, states have legal obligations to

ensure food safety in their respective jurisdictions, depending on the ratification of the relevant

international conventions and domestic legislation.

This chapter has explained that the state parties are required to protect and fulfil the right of

food safety of their people. Through Act 11/2005 on Ratification of International Covenant on

Economic, Social and Cultural Rights (ICESCR) 1966, Indonesia has ratified the ICESCR.

Therefore, Indonesia has an obligation to ensure food safety. This governmental obligation has

been largely delegated to NADFC to perform. Hence, this thesis considers the role of NADFC

which specifically tasked to enforce the laws related to food adulteration for food safety in

Indonesia.

1.5. Research Aims and Objectives

The specific aims of this study are as follows: (i) to identify and address issues with the existing

food safety regulatory and enforcement regime in Indonesia; and (ii) to identify interventions

to improve the regime; (iii) to propose recommendations to better protect domestic and

international consumers from unsafe foods product sold in Indonesia and overseas.

To achieve these aims, this research, in an Indonesian context (i) critically examines food safety

laws and regulations as well as their enforcement; (ii) identifies possible regulatory

contributions to the continued food safety issues; (iii) evaluates the performance of NADFC as

the principal state agency to regulate food safety; and (iv) provide recommendations to

improve the effectiveness of regulatory and enforcement regime in Indonesia.

1.6.Research Questions and Sub-questions

Based on the above-mentioned research aims and objectives, the main research questions and

sub-questions of the proposed thesis are as follows:

1. What is the legal framework for food safety in Indonesia?

a. What are the laws and regulations on food safety?

b. Are there any issues in the legal framework for food safety in Indonesia?

c. How are laws and food safety standards formed?

d. Is there any provision which stipulates the role of NADFC?

2. How competent is NADFC in effectively regulating food safety?

a. Are the powers, functions and composition of NADFC appropriate?

b. Is NADFC proactive in preventing breaches of food safety law?

c. How efficient is NADFC in the enforcement of food safety laws?

d. What is the administrative penalty that NADFC can impose against breaches of

food safety laws?

e. What is the role of NADFC in relation to civil remedies?

f. What is the role of NADFC in enforcing criminal liability imposed by food safety

laws?

3. How effective is the administrative framework for food safety in Indonesia?

a. What are the bodies appointed as food safety administrative bodies?

b. Do these administrative bodies work effectively?

c. Is there any issue with the administrative framework?

d. How is the coordination between NADFC and other food safety bodies?

4. How effective is the civil liability system for food safety in Indonesia?

e. What are the laws enacted for helping consumers obtain compensation?

f. What are the remedies consumers can obtain?

g. Are these remedies sufficient for consumers?

h. What is the role of NADFC in securing consumer compensation?

i. What are the issues in the civil liability regime in Indonesia?

5. How effective is the criminal liability system for food safety in Indonesia?

a. What are the criminal punishments that can be imposed to wrongdoers?

b. Are the sanctions adequate to deter the wrongdoers?

c. Does the criminal liability system effectively make the business actors criminally

liable?

6. What insights can NSW give to strengthen the regulatory framework for food safety?

a. What are the laws and regulations that regulate food safety in NSW?

b. How is the coordination between food safety bodies?

c. How does NSW ensure the consumer gets compensation for the damages caused by

food adulteration and contamination?

d. How does NSW criminalise the food safety offences?

e. How effective are the food safety law enforcement systems in NSW?

1.7. Literature Review

Several studies have considered some issues in food safety regulation in Indonesia. Those

studies have focused on the enforcement role of NADFC. The first is Nurhayati who studies

the effectiveness of regulation by NADFC related to the distribution of imported processed

food products in establishing consumer protection. She also analysed the obstacles faced by

NADFC in the distribution control of imported processed food products in Indonesia. The

study’s results showed that the regulation to establish consumer protection conducted by

NADFC concerning the distribution of such products was not yet effective. Illegal food

products still can be found in Indonesia. Moreover, the study revealed that there were imported

food products that contained dangerous materials and were unsafe to consume, although

licensed to be distributed in Indonesia. Nurhayati further argued that the obstacles NADFC

faces in controlling these imported processed food products comprise two categories, namely

internal and external aspects. The internal aspect is the lack of human resources and the external

aspects are less stringent supervision and consumer’s unwillingness to report such incidents.

This study by Nurhayati does not investigate the coordination between NADFC, law

enforcement agencies and the judiciary in regulating the distribution of imported food in

Indonesia. In addition, the study does not investigate the power of NADFC to impose sanctions

on food producers and sellers.

Puspita conducted another study. It aimed to describe the regulation of unsafe food in the city

of Samarinda by NADFC. The results of this study demonstrated that (i) the duty of NADFC

to conduct laboratory tests had not been effectively performed, (ii) NADFC’s duty to conduct

inspection had not been conducted maximally owing to information leakage (iii) and the

NADFC faced difficulties in enforcing sanctions. Puspita found that NADFC in Samarinda had

the power only to impose administrative sanctions, such as guidance and business license

revocation, on business actors violating food safety law and regulation. Meanwhile, the police

or prosecutor’s office conducted legal proceedings and NADFC Samarinda only served as a

witness and performed laboratory tests.

Puspita also describes some factors that have become obstacles to the enforcement of food

adulteration laws and regulations, namely, the lack of human resources, facilities and public

awareness about the dangers of unsafe food. Nevertheless, the study by Puspita does not cover

the civil remedies power of NADFC, or the role of NADFC in educating and creating public

awareness of food adulteration and its consequences. This role of NADFC is no less important

to improve food safety in Indonesia.

A study by Firganefi aimed to (i) analyse the enforcement of criminal sanctions against food

business actors who violate the law (ii) and identify the inhibiting factors in enforcing criminal

law. Firganefi’s study showed that the primary sanction against wrongdoers was only in the

form of oral and written warning, supervision and guidance by NADFC and related institutions,

with only a few cases processed through the courts. The ineffective use of criminal law in

regulating unsafe food was caused by some factors, namely, outdated law, a lack of facilities

and human resources, and public awareness towards food safety and its laws and regulations.162

However, Firganefi has not given a clear suggestion to improve food safety in Indonesia. The

present study intends to contribute knowledge regarding the enforcement of food adulteration

regulations by reviewing other countries food safety system to draw inspiration from abroad.

Diana conducted a study that evaluated the performance of NADFC in Yogyakarta in handling

the case of melamine-contaminated food by examining community satisfaction in this regard

and identifying the gaps between expectations and reality. Diana mentioned five different

dimensions to understand the gap between community expectations and actual performance:

reliability, responsiveness, empathy, assurance and tangibility. The result showed that gaps

existed in every dimension. It also revealed that the community in Yogyakarta was not fully

satisfied with the performance of NADFC in Yogyakarta in handling the melamine-

contaminated food. Even though Diana’s study evaluates the performance of NADFC based

on community satisfaction, it does not cover the civil remedies for the people who suffer from

melamine-contaminated food.

Yusuf also investigated the performance of NADFC in Yogyakarta. This study aimed to

evaluate the performance of NADFC in Yogyakarta in supervising drug and food products

containing harmful materials. To this end, Yusuf used three indicators, namely productivity,

responsivity and responsibility. The analysis based on the three indicators showed that the

productivity of NADFC in Yogyakarta was unsatisfactory.166 Yusuf also found some obstacles

NADFC in Yogyakarta faced in maximising its performance, namely internal and external

factors. The internal factor was the lack of human resources, whereby the number of human

resources was not proportional to the scope of supervision. In addition, the competence and

quality of NADFC employees in Yogyakarta were also not evenly distributed.168 The external

factor was the low level of awareness among business actors regarding meeting the

requirements of good production procedure. Further, the sanctions imposed on wrongdoers did

not act as a deterrent.170 Yusaf’s study does not analyse the reason for regulatory failure

triggered by consumer behaviour, which is influenced by culture, habit, traditions and

purchasing power. It is very important to understand the contribution of these factors to

ensuring food safety in Indonesia. By understanding these, the attempt to strengthen regulation

of food adulteration in Indonesia become easier.

As discussed above, a few small studies have been conducted demonstrating the weaknesses

of the food safety regulation in Indonesia. However, those studies lack the depth of analysis

the present study intends to undertake. Moreover, those studies touched upon a few selective

issues, leaving several critical concerns of food safety untouched. There is thus a gap between

previous research and the scope of the doctoral research at hand.

1.8.Rationale of the Study

Food adulteration has become an alarming food safety issue in Indonesia, so it requires

immediate improvement in its regulation. The existing legal, administrative and enforcement

framework has not been able to ensure safe food for Indonesians. In addition, several issues

also hamper the performance of NADFC as the primary agency to regulate food adulteration

in Indonesia so that it does not run effectively.

For that reason, this study has been carried out, because to the best of the authors’ knowledge,

there has been no thorough study examining NADFC performance in regulating food safety

across all Indonesia. In addition, there is no research that looks at NSW for ideas to deal with

issues in the legal, administrative, and enforcement framework for food safety in Indonesia.

The purpose of this study is to give a contribution by providing recommendations to improve

the effectiveness of food safety regulation by NADFC in Indonesia. These solutions are

obtained from an in-depth analysis of the issues in the food safety regulation in Indonesia and

the search for suitable solutions through research on the NSW food safety system.

It is hoped that this research can be useful to improve food adulteration regulation in Indonesia,

especially for NADFC who wish to improve their performance and for legislators responsible

for the effectiveness of food adulteration laws and regulations in Indonesia. Also, it is hoped

that this thesis can enrich the existing literature on food adulteration both at the national and

international level.

1.9.Scope of the Study

To conduct an in-depth analysis of the role of NADFC in food safety regulation in Indonesia,

this study will concentrate on various aspects of regulation as defined below.

a. Definition of Safe Food

In Indonesia, the law defines safe food as food that is free from biological, chemical and other

contaminants that can harm and endanger human health, and food that is not contrary to the

religion, beliefs and culture of the community. Although it is stated that in Indonesia food is

considered safe if it is does not violate the religious teaching, the definition of safe food used

in this study is that food is safe for human consumption.

b. Type of Food Adulteration

Food adulteration referred to in this thesis is intentional adulteration driven by economic

motives.

c. Food Safety Related Bodies

This thesis concentrates on the different aspects of the primary regulatory body, NADFC. A

comprehensive discussion of other agencies involved in the regulation of food adulteration,

such as Ministry of Agriculture, Ministry of Fisheries and Marine Affairs, Ministry of Forestry,

Ministry of Industry, Ministry of Trade, Ministry of Health, and local government, falls beyond

the purview of this investigation. Discussions related to regulatory bodies other than NADFC

will only revolve around the coordination with NADFC in food adulteration regulation.

d. Laws and Regulations Covered

Food safety regulation in Indonesia involves many laws and regulations. However, to keep this

thesis in a manageable size, this thesis will only focus on the major laws and regulations

relating to food adulteration, such as the Food Act 18/2012; Consumer Protection Act 8/1999.

Other food safety-related regulations such as Government Regulation 86/2019 on Food Safety;

Government Regulation No. 69/1999 on Food Labeling and Advertisement; Head of NADFC

Regulation 11/2019 on Food Additives; and Technical Regulation established by NADFC will

also be covered in several sections in chapter 2 of this thesis.

e. NSW Laws and Regulations

In Australia, every State and Territory has their own food safety laws and regulations. The

present research involves the examination of food safety regulations in NSW that are closely

related to food adulteration. This thesis also considers the regulations of the Commonwealth

of Australia that are considered complementary to NSW regulations. This thesis only discusses

the relevant guidelines, regulatory mechanism, and government programs that are considered

relevant to make improvement in food adulteration regulation in Indonesia. Therefore, some

regulations in Australia and NSW may not be discussed in detail.

f. Food Safety Issues

In Indonesia, food safety regulations also regulate genetically modified food, food irradiation,

food packaging, and food advertising. However, this thesis will only focus on food

adulteration. However, some cases related to false labelling and misleading information of food

products are discussed in their relations to food adulteration offences.

1.10. Research Methodology

This study is qualitative in nature, with the main goal being to examine the effectiveness of the

regulatory framework for food safety in Indonesia. To answer the research questions and

subquestions, the present study was developed and conducted in the following way.

1. Desktop Study

A desktop study is a preliminary investigation that involves collating and evaluating available

information from a wide variety of sources. This research conducted a desktop study of

information obtained from primary sources of law including legislation and case law, and

secondary sources such as journal articles, books, newspaper, reports, video, and institutional

reports and papers such as those published by NADFC, other relevant government offices in

Indonesia, and international organisations such as World Health Organisation (WHO).

2. Comparative Research

The alarming issue of food adulteration has been a concern for a long time. Regulatory failure

along with external factors have become obstacles to a successful and effective food safety

system in Indonesia. Food safety is an important issue worldwide.173 To get ideas and insights

for improvement, this study carries out comparisons of food safety regulatory framework in

Indonesia and in other jurisdictions.

Alan Watson defines comparative law as the study of relationship of the rules between one

legal system to another. It can be a comparison of two or more legal systems.

Conventionally, comparative analysis is about explaining differences and similarities. It is a

logical method of reasoning which enables objective identification of strengths and weaknesses

of system, institution, norm, or practice of the laws compared.

Comparison is important in a legal study, as it is beneficial to find out solution to the problems.

Eberle argues that in this increasingly globally linked world, it is important to involve

comparative law methodology. According to him, understanding the differences among areas

of the world and countries (the role of law in different countries) provides insight and

knowledge. These insights and knowledge can be beneficial for the improvement of legal

system. By comparing one legal system to another, the shortcomings can be known, and

through comparison, it helps the weaker one to learn from the effective counterpart. This study

has chosen NSW as an example of an effective food safety system.

The research involves a comparison between the laws and regulations in relation to food safety

in Indonesia and NSW. NSW and Indonesia are two different jurisdictions with different

considerations. NSW is an integral part of a resource-rich and geographically contiguous

developed country, Australia, with comparatively a small population. Indonesia is a

resourceconstrained and non-contiguous archipelago developing country with a huge

population. In the food safety context, food safety issues faced by developed and developing

countries sometimes differ because of differences between their legal and regulatory strengths

and weaknesses in governing food safety, availability of safe food, consumers’ awareness of

unsafe food and their financial ability to buy safe food, and enforcement mechanisms. NSW is

chosen because it is globally recognised as a jurisdiction that successfully ensures food safety

for consumers. The level of food business compliance with food safety regulations in NSW is

very high, reaching 95%. The high standard and modern food safety management in NSW is

an example of effective coordination between several government agencies and organisations.

Although both countries are different in economic status and in the types of food safety

burdens, but when it comes to food safety, Indonesia still can learn from NSW. This study

considers and borrows the laws and regulations of of food safety that are regarded

as feasible to implement in Indonesia in order to improve the effectiveness of the regulation of

food adulteration in Indonesia particularly by NADFC.

NSW is Australia’s largest and oldest state jurisdiction. In the food safety context, the

government in NSW has introduced food safety regulation a long time ago starting through the

enactment of the NSW Public Health Act1896 to ensure food safety. Then in 1908, the Pure

Food Act came into effect. Afterwards, regulators in NSW have actively ensured food safety

through various strategies, such as inspecting meat carcasses in 1950.

Food safety regulatory framework in NSW has been updated in line with the development of

food technology and social demands. In 2003, the new Food Act 2003 has been enacted. Then

on 5 April 2004, New South Wales Food Authority (NSWFA) was established and appointed

as the state’s single authority responsible for food safety. To carry out its functions, NSWFA

collaborates with partners across 152 local councils and food industry to supervise 55 thousand

food businesses in NSW. Food safety regulation in NSW monitors food safety by developing

numbers of initiatives such as name and shame, food choices, scores on doors, targeted training

programs, food regulation partnerships, and food safety schemes. Further explanation about

NSWFA can be found in chapter 3 (sub-section 3.3.1) of this thesis regarding administrative

framework for food safety in NSW. Although food safety regulation in NSW is not argued to

be perfect, and achieving perfection in such a complex regulatory area may not be easy,

Indonesia can still learn from its (NSW) century old regulatory experience and improved laws.

3. Doctrinal research

In legal study, where multiple methods are used, identification, analysis, and synthesis of law

are still necessary to do. This is called a doctrinal study, a traditional method for legal studies.

In doctrinal research, a researcher draws up a descriptive and detailed analysis of legal rules

obtained from primary sources (cases, statutes, or regulations). The aim of this method is to

gather, organise, and describe the law, provide commentary on the source used, then identify

and describe the underlying theme or system and how each source of law is

connected. It is important to note that the cut-off date that laws examined in this thesis are

updated until 30 November 2022, therefore.

To answer the research questions and sub- questions, this study is conducted by identifying the

primary materials (legislation and case law), analysing those materials, effects, and their

interrelationship, and synthesising the problems as well as making tentative conclusions.

These processes are enlighten by researches of some background materials, such as legal

dictionaries, textbooks, policy papers, primary materials, and journal articles.

1.11. Chapter Overview of the Thesis

The contents of this thesis are briefly described as follows:

Chapter 1- General Introduction (current chapter)

Chapter 1 provides general information about the Indonesian legal framework, food safety

issues (food adulteration and contamination) and their negative impact in Indonesia. This

chapter also discusses the relationship between food safety and human rights, and outlines the

theoretical basis for the research. Research aims and objectives, research questions and

subquestions, rationale for the study, scope of the study and research methodology are also

discussed in this chapter.

Chapter 2- Legal Framework for Food Safety in Indonesia

Chapter 2 analyses the food safety legal framework in Indonesia. This analysis finds issues that

affect NADFC’s performance in regulating food safety. This chapter also discusses the legal

framework for food safety in NSW to find some possible solutions to improve the effectiveness

of laws and regulations in regulating food safety in Indonesia.

Chapter 3- Administrative Framework for Food Safety Regulation in Indonesia Chapter

3 discusses the current food safety regulatory framework of Indonesia. The discussion focuses

on NADFC as it is the focus of the study. The funding, facilities, composition of NADFC and

coordination of NADFC and other food safety related bodies are analysed in this chapter. The

discussion in this chapter identifies some drawbacks in the food safety regulatory framework

in Indonesia. Those drawbacks are analysed in the subsequent chapters of the thesis.

Chapter 4- Civil Liability for Food Safety Issues in Indonesia

Chapter 4 investigates the civil liability system for food adulteration and contamination in

Indonesia. The laws and related bodies are analysed to find the issues in the attempt to help

consumer get compensation for the damages they suffer due to food adulteration and

contamination. The analysis of the issues is followed with some possible solutions to improve

the effectiveness of civil liability system in Indonesia.

Chapter 5- Criminal Liability for Food Safety Issues in Indonesia

This chapter provides the analysis on the criminal liability regime in relation to adulteration

and contamination in Indonesia. This analysis aims to find drawbacks in ensuring that food

adulteration and contamination actors can be adequately punished. Overall, the criminal

liability system in NSW is discussed to give insight to improve the effectiveness of criminal

liability for food safety in Indonesia.

Chapter 6 – Administrative Enforcement of Food Safety Regulation in Indonesia

Chapter 6 analyses the issues concerning administrative enforcement of food safety regulation

that have been identified in Chapter 3 of the thesis. To find solutions to improve the

effectiveness of food adulteration regulation in Indonesia, this chapter also involves the

discussion on NSW food adulteration regulation.

Chapter 7- Judicial Enforcement of Food Safety Laws in Indonesia

Chapter 7 investigates the issues in the judicial enforcement of food safety laws in Indonesia.

Some possible solutions are obtained from the analysis of their equivalent on NSW judicial

enforcement.

Chapter 8- Summary and General Conclusion

This chapter presents the key findings and research recommendations.

1.12. Summary and Conclusions

Food adulteration and contamination are alarming issues in Indonesia. The government of

Indonesia has enacted multiple laws and regulations and appointed some government bodies

to combat unsafe food in Indonesia. However, the objective has not been successfully achieved

due to regulatory issues.

The discussion on food adulteration and contamination in Indonesia in the early part of this

chapter shows that food adulteration and contamination have negatively affected public health

and the national economy. The current chapter has also emphasised that food adulteration and

contamination are violations of the right to safe food and it is the obligation of the state to fulfil

and protect this basic human need to have safe food. This has justified the public interest theory

of regulation that requires the state (government) to intervene the activities of the public

through regulation.

The main research questions of this research are designed to find out the issues in the legal and

regulatory framework for food safety. The research questions also raise questions about the

effectiveness of NADFC as the primary agency to regulate food safety in Indonesia. Finally,

the research also analyses the possible solutions to improve the effectiveness of the legal and

regulatory framework, as well as to enhance the performance of NADFC. To keep the

dissertation to a practicable size, the limitations of the study have been outlined in this chapter.

The methodology section demonstrates how the research is carried out. The chapter also

provides a brief overview of the thesis content. To examine the laws governing food safety,

Chapter 2 discusses the legal framework for food safety in Indonesia.

Chapter 2: Legal Framework for Food Safety in Indonesia

2.1. Introduction

To ensure safe food for everyone, an appropriate and effective legal framework is required. An

effective legal framework is purposeful and includes problem solving by both state and

nonstate actors. A legal framework should be able to provide a beneficial function to the

people.2 An effective food safety legal framework should ensure quality and standards of food.

In response to growing food safety issues, the Indonesian government has enacted several laws

and regulations. Section 2.2 of this chapter describes the current legal framework for food

safety in Indonesia (Indonesian LFFS). Section 2.3 introduces the legal framework for food

safety in NSW (NSW LFFS) to explain the equivalents in Indonesia to gaining information

regarding features of a modern and useful LFFS. In addition, the discussion on the NSW LFFS

is worthwhile to formulate solutions to improve the effectiveness of the Indonesian LFFS. The

chapter then explores the drawbacks of the Indonesia LFFS in section 2.4. The first

shortcoming is less useful provisions, such as food safety requirements that are too loose or too

strict. The second issue is multiplicity, which leads to problems in regulation updates and

dissemination. The shortcomings in the Indonesian LFFS have negatively affected the

regulation of food safety by the NADFC in Indonesia.

The analysis of each of the issues is followed by a solution obtained from the study of the NSW

LFFS. Through the analysis, this thesis proposes several recommendations to improve

Indonesian LFFS. The insights that can be formulated include collaboration of various

stakeholders in the making of food safety standards, unification of food standards making, and

a single codification for food standards. These recommendations are discussed in section 2.5

of the chapter. Finally, section 2.6 summarises and concludes the chapter.

2.2. Current Indonesian Legal Framework for Food Safety

The Formation of Laws and Regulations Act 12/2011 stipulate the types and hierarchy of laws

and regulations in Indonesia. The Act regulates that the legal framework is comprised of the

laws made by the legislators and proclaimed by the President of Indonesia, regulations

formulated by relevant ministries or non-ministerial bodies, and by-laws framed by local

government bodies. If conflict arises, the laws of higher authorities will prevail and the

conflicting regulations of the lower authorities in the hierarchy will be ineffective.

Chapter 2: Legal Framework for Food Safety in Indonesia

In Indonesia, the formation of regulations is regulated through the Formation of Laws and

Regulations Act 12/2011. According to Article 5 of the Act, the formation of statutory

regulations must be carried out based on several principles, namely:

a. Every piece of regulation must have a clear objective.

b. Each type of regulation must be made by a state institution or an authorised official.

c. The formation of regulations must consider the type or hierarchy of regulations.

d. Law making process must involve the consideration of philosophical, sociological, and

juridical foundation. The philosophical foundation means that the formation of

regulations should consider the philosophy of Indonesia which originates from

Pancasila and the Preamble of the 1945 Constitution. The sociological foundation is a

consideration or reason that illustrates that regulations are formed to meet the needs of

society in various aspects. The sociological foundation concerns empirical facts

regarding the rise of problems and needs of society and the state. The juridical

foundation is a consideration or reason that illustrates that regulations are made to

overcome legal deficiencies or fill legal gaps by considering laws and regulations that

already exist. The juridical foundation concerns legal issues related to the substance or

material being regulated so that new statutory regulations need to be formed. Some of

these legal issues include, among other things, regulations that are outdated, or are not

harmonised with other rules, or there are overlaps between the existing rules.

e. Every piece of legislation or regulation is made because it is really needed and useful

in regulating the life of society, nation, and state.

f. Each of the statutory laws must meet the requirements, such as, it must be sufficiently

clear and unambiguous, must not allow conflicting interpretations by regulatory or

enforcement agencies, must provide certainty about definition of wrongs and remedies

against any breach of legal prescriptions.

g. The making of laws and regulations must follow a transparent process and should

reflect social needs and expectations regarding remedies against food safety problems.

In this way, all levels of society have should be given an opportunity to provide input

in drafting laws and regulations.

The Indonesia LFFS also comprises Acts as well as their implementing regulations. The

implementing regulations are developed and established by several bodies according to the

Chapter 2: Legal Framework for Food Safety in Indonesia

type of food. This sub-section discusses the key food safety laws, namely Food Act 18/2012;

Health Act 36/2009; and Consumer Protection Act 89/1999.

Besides that, the Indonesia LFFS also includes multiple technical regulations that are enacted

by food safety related ministries, bodies (NADFC) and local governments. However,

considering the length of the thesis, this chapter only discusses the most relevant ones. The

technical regulations discussed in the current sub-section are: Food Act 18/2012; Health Act

36/2009; Consumer Protection Act 8/1999; Indonesian Civil Code; Indonesian Criminal Code;

Government Regulation 86/2019 on Food Safety; Government Regulation 69/1999 on Food

Labelling and Advertisement; Presidential Regulation 80/2017 on NADFC; Minister of Health

Regulation 33/2012 on Food Additives; Head of NADFC Regulation 31/2018 on Processed

Food Labels; Head of NADFC Regulation 11/2019 on Food Additives; and Head of NADFC

Regulation 7/2018 on Prohibited Raw Materials in Processed Food.

It is important to note that the provisions of the laws and regulations and bodies mentioned in

this section are not explained in the current section, except some provisions that are used to

explain the issues in Indonesia LFFS. Those laws and bodies are analysed in the subsequent

chapters, namely Chapters 3, 4, 5, 6, and 7 of this thesis, in more appropriate places.

a. Food Act 18/2012

The Food Act 18/2012 (FA 18/2012) is the key regulation for food in Indonesia. The purpose

of this act is to increase food production; to provide adequate, diverse, nutritious and safe food;

to facilitate easy access to food; to enhance the competitiveness of food in both domestic and

international markets; to raise the knowledge and awareness of the people about food safety;

to improve welfare for farmers, fishermen, fish breeders, and food businesses; and to protect

and develop national food resources.

It regulates in general all matters regarding food, such as food planning; food availability; food

consumption; food safety; food labels and advertisements; food supervision; food information

system; food research and development; food institutions; community participation; and

investigation. In relation to food adulteration, FA 18/2012 sets out provisions on food

sanitation; food additives; genetically modified food; food irradiation; food packaging; food

safety and quality guarantee; and halal guarantee for those required. Those provisions are

stipulated by the Act to prevent the possibility of biological, chemical, and other contaminants

that can endanger human health. The FA 18/2012 also stipulates penalties for the offender, in

Chapter 2: Legal Framework for Food Safety in Indonesia

the form of administrative and criminal sanctions. These sanctions are discussed in Chapter 5

and Chapter 6 respectively.

b. Health Act 36/ 2009

Food safety is closely related to human health. This Act stipulates all the matters related to

human health. It contains 205 sections and 25 chapters which regulate the general provisions

of health; the principles and objectives of health; rights and obligations of any person in health

care; government responsibility to provide health care; government responsibility to provide

resources in the health sector and efforts to realise the highest possible health for the

community (including food safety); health of mothers, infants, children, adolescents, elderly

and disabled; mental health; communicable and non-communicable diseases; health and

working environment; management, information and health financing; role of the community;

body health considerations; guidance and supervision; and investigation and sanctions for

violation of health regulations.

c. Consumer Protection Act 8/1999

The background of the enactment of the Consumer Protection Act 8/1999 (CPA 8/1999) is to

provide certainty over the quality, quantity and safety of goods and services consumed by

consumers. In addition, CPA 8/1999 is expected to be able to increase the dignity of consumers

through increasing awareness, knowledge, ability and independence of consumers to protect

themselves and fostering the attitude of responsible business actors.

CPA 8/1999 regulates consumer rights and obligations as well as business actors; acts that are

prohibited for business actors; the responsibility of the business actors; provisions

regarding standard clauses; consumer dispute resolutions; the consumer dispute resolution

agency; non-governmental consumer protection institutions; and sanctions for fraudulent

business actors in the form of administrative sanctions as well as criminal sanctions.

The enactment of CPA 8/1999 marked a new era in the consumer protection regime in

Indonesia. Previously, regulations related to consumer protection relied on the Indonesian Civil

Code (ICC) that is discussed further below.

Chapter 2: Legal Framework for Food Safety in Indonesia

d. Indonesian Civil Code

The Indonesian Civil Code (ICC) or Burgerlijk Wetboek (in Dutch-abbreviated as BW) is a

code of civil laws and regulations inherited from the Dutch colonial period. S 2 of the

Transitional Rules of the 1945 Constitution of Indonesia states that all state agencies and

existing regulations are still in force, until a new one has been made. Recognition of the ICC

is shown in the provision in s 7 paragraph (1) of the Formation of Legislation Act 12/2011,

which stipulates that the ICC as a law (codification of law) is included in the hierarchy of

statutory regulations in Indonesia. The ICC contains all basic laws that govern individual

interests, including the provisions on compensation. S 1365 of the ICC regulates that every act

that intentionally violates the law, and brings harm to others, obliges the person who caused

the loss due to his or her mistake to compensate for the loss. The ICC also recognises losses

incurred by negligence as provided for in s 1366 of the ICC.

e. Indonesian Criminal Code

The Indonesian Criminal Code is a regulation that forms the basis of criminal law in Indonesia.

The Criminal Code is derived from Dutch colonial law (Wetboek van Stafrecht voor

Nederlands-Indië). The ratification was carried out through the Staatsblad of 1915 number 732

and came into force on January 1, 1918. After independence, the Criminal Code was still

enforced along with the adjustment of conditions in the form of revocation of provisions that

were no longer relevant. Similar to the ICC, the recognition of the Indonesian Criminal Code

is stated in s 2 of the Transitional Rules of the 1945 Constitution of Indonesia.

The contents of the Criminal Code are arranged in three chapters, including: Chapter I General

Rules (ss 1 - 103), Chapter II Crime (ss 104 - 488), and Chapter III Offences (ss 489 - 569).

Even though the Criminal Code has been enacted nationally, it does not mean that efforts to

create a new criminal law system have stalled.

f. Government Regulation 86/2019 on Food Safety

Government Regulation 86/2019 on Food Safety (GR 86/2019) regulates general provisions on

food safety, such as food sanitation; food additives; genetically modified food; food irradiation;

food packaging standards; food certifications; and halal assurance. The main point of GR

86/2019 is to set out duties, functions, and authority of food safety bodies. The duties, functions

and authority of food safety bodies are food safety policy-making; issuance of business licence;

food safety monitoring; and enforcement of sanctions. GR 86/2019 also stipulates the types of

Chapter 2: Legal Framework for Food Safety in Indonesia

administrative sanctions, amount of fines, as well as the procedures for imposing

administrative sanctions.

g. Government Regulation 69/1999 on Food Labelling and Advertisement

Food labels are one of the food safety requirements for packaged food. Government Regulation

69/1999 on Food Labelling and Advertisement regulates all matters regarding food labels,

namely the requirements to include certain information, such as food ingredients, weight,

expiry date, registration number, production code, nutritional value, and food

additives. In addition, this government regulation also stipulates administrative sanctions for

business actors who violate the provisions of the regulation.

h. Presidential Regulation 80/2017 on NADFC

FA18/2012 does not explicitly mention NADFC as a food safety authority in Indonesia; it only

stipulates ‘food safety, food quality and food nutrition requirements, as well as food label and

advertisement requirements for Processed Food, are implemented by government agencies that

carry out governmental tasks in the field of drug and food control’. Then in 2017, the President

issued Presidential Regulation 80/2017 that governs NADFC in detail. This regulation

stipulates the tasks, functions, authority, organisational structure and funding of the NADFC.

i. Head of NADFC Regulation 11/2019 on Food Additives

This regulation sets out the permitted categories of food additives; different types; and

maximum dosage of food additives. In addition, this regulation which is enacted by NADFC

also covers the provisions on food additives licencing; label and advertisement requirements

for food containing additives; production, importation and sale of food additives; as well as

prohibition in food additives use.

j. Minister of Health Regulation 33/2012 on Food Additives

In line with the Head of NADFC Regulation 11/2019 on Food Additives , this regulation framed

by Ministry of Health also regulates the permitted categories, and types and maximum dosage

of food additives.55 Moreover, this regulation regulates the prohibited materials to be used as

Chapter 2: Legal Framework for Food Safety in Indonesia

food additives; production, importation and sale of food additives; and labelling requirements

for food containing additives.

k. Head of NADFC Regulation 31/2018 on Processed Food Labels

NADFC has made this regulation to regulate the inclusion of food labels for processed food.

Food label requirements set out in this regulation cover the obligation to include product name;

list of ingredients; date and production code; expiry date; licence number; the origin of certain

ingredients; nutrient content; information regarding storage method; allergens; food claims;

prohibition; and administrative sanctions.

l. Head of NADFC Regulation 7/2018 Prohibited Raw Materials in Processed Food

This regulation provides the list of types of prohibited ingredients in food processing, namely

165 prohibited types of ingredients originating from biological sources and 35 prohibited types

of compounds.

Besides those mentioned above, there are still many other food safety technical regulations in

the Indonesian LFFS. However, they are not discussed in this chapter because they are not

directly related to food adulteration as the focus of this thesis. Overall, the Indonesian LFFS

consists of multiple laws and regulations. The regulations, particularly the technical

requirements (food standards), are established by several food safety related bodies and enacted

in many different titles of regulations.

2.2.1. National Food Safety Standardisation System

The standardisation system in Indonesia has been regulated in Government Regulation

102/2000 on National Standardisation. The National Standardisation Agency (NSA) is a

government agency that has the task of carrying out government duties in the field of national

standardisation. In addition to the NSA, other institutions involved in the development of

national standardisation include technical agencies, business actors, the public, consumer

protection agencies, and local governments.73 In the context of food safety, the technical

agencies involved in developing national standards are NADFC, Ministry of Health, Ministry

of Agriculture, Ministry of Maritime Affairs and Fisheries, Ministry of Industry, Ministry of

Forestry, and Local Government. This is based on the food safety system in Indonesia that

adheres to an integrated food safety system.74

Chapter 2: Legal Framework for Food Safety in Indonesia

The 1945 Constitution of the Republic of Indonesia has provided a strong foundation for food

regulation. Regulation of food and food safety as mandated by the 1945 Constitution, among

others, is implied in s 27(2) and s 33. Then Act 7/1999 on Ratification of the Agreement

Establishing the World Trade Organization (WTO), Food Act 18/2012, and Consumer

Protection Act 8/1999 were issued. To implement the law, relevant government regulations

were formed; for example, Government Regulation 86/2019 on Food Safety, Government

Regulation 69/1999 on Food Labels and Advertising, and Government Regulation 102/2000

concerning National Standardisation.

2.2.2. Principles in the Development of Good Standards and Regulations

To formulate quality standards that gain wide acceptance among stakeholders, these standards

are formulated by complying with the WTO Code of Good Practice: a. Openness

Open for all related stakeholders to participate in the formulation of the Indonesian National

Standard.

b. Transparency

Transparent so that all related stakeholders can follow the process of forming the Indonesian

National Standard, starting from the programming and formulation stage to the stage of its

stipulation.

c. Consensus and Impartiality

Impartiality and consensus so that stakeholders’ interests can be accommodated and be treated

fairly.

d. Effectiveness and Relevance

Effective and relevant to facilitate trade because it pays attention to market needs and does not

conflict with the applicable laws and regulations.

Chapter 2: Legal Framework for Food Safety in Indonesia

e. Coherence

Coherent with the development of international standards so that the development of the

domestic market is not isolated from global market developments and facilitates international

trade.

f. Development Dimension

Barriers that are usually experienced by MSMEs to participate in the formulation of national

standards must be considered. In facilitating the participation of MSMEs and the voice of their

opinions, real efforts are needed. MSME capacity development must be prioritised so that

MSMEs will be able to meet the standards required by the market. This is intended so that

MSMEs can compete in regional/international markets and can become part of the global

supply chain. Thus, the resulting standard will provide the greatest benefit to the interests of

society and the state.

2.3. Current NSW Legal Framework for Food Safety

A coherent legal framework is the foundation of an effective food control system, providing

the necessary legal powers and prescriptions to ensure food safety and allowing the competent

authorities to build preventive approaches into the system. According to Dabagh, to be able to

improve the effectiveness of a legal framework, it is necessary to modernise and reconstruct

the framework for strengthening the legal regime. Therefore, this chapter aims to offer

recommendations for increasing the usefulness of LFFS of Indonesia.

As explained in the methodology section in Chapter 1, this thesis looks at the food safety

system in NSW. To be able to analyse the NSW LFFS, the following sub-sections discuss the

food safety laws and regulations of NSW-particularly those that are related to food adulteration

and contamination. The NSW LFFS consists of regulations issued by the NSW government

and as well as those made by the federal government that are applied nation-wide

(Commonwealth of Australia). The NSW LFFS includes the Food Act 2003 (NSW), Fair

Trading Act 1987 (NSW), and Food Regulation 2015 (NSW). The regulations of the

Commonwealth of Australia, such as the Competition and Consumer Act 2010 (Cth), the

Australia New Zealand Food Standards Code (ANZFSC) established under the Australia New

Zealand Food Authority Act 1991 (Cth), and Trade Practices Act 1974 (Cth) operate alongside

the NSW laws.

Chapter 2: Legal Framework for Food Safety in Indonesia

2.3.1. Australia New Zealand Food Standards Code (ANZFSC)

The Australia New Zealand Food Standards Code (ANZFSC) was established by Food

Standards Australia and New Zealand (FSANZ). The standards in the ANZFSC are legislative

instruments under the Legislation Act 2003 (Cth). ANZFSC includes compositional, chemical,

and microbiological standards, the standard for food labelling, and other standards regarding

food offered for sale in Australia.

The ANZFSC was arranged consistently following the World Trade Organization (WTO)

guide, which is risk and evidence based. As a WTO member, Australia is also obliged, where

possible, to harmonise its domestic regulations with Codex Alimentarius standards such as

food additives, pesticide residues and veterinary drugs. The ANZFSC is also based on the

Hazard Analysis of Critical Control Points (HACCP) rule. The HACCP approach to food

safety, which identifies and addresses physical, chemical and microbiological hazards in a

preventative manner, has led to the requirement for food safety plans for food industries and

businesses. This approach has been instrumental in identifying unsafe practices and reducing

reliance on end-product testing for chemical or microbiological hazards prior to sale, although

some testing to verify the efficacy of the controls is still necessary.

NSW state authorities require food businesses to comply with ANZFSC. Any person who wants

to run a food business or wants to sell food must abide by the requirements of the ANZFSC.

For example, food products must be equipped with labels that give certain information for the

consumer. These requirements are preventive approaches to managing the food safety risks

within their business.

2.3.2. Food Act 2003

The Food Act 2003 (FA 2003) (NSW) is the main legislation relating to the safe handling and

selling of food in NSW. The objects of the Act are to ensure the safety and suitability of food

for human consumption.90 The Act also prohibits any misleading conduct in relation to the sale

of food and gives legal effect to the ANZFSC in NSW. The Act details the offences relating to

food, orders that can be made against a business, outlines food safety programs and supervisors

Chapter 2: Legal Framework for Food Safety in Indonesia

and lists the requirements to register food premises. The FA 2003 criminalises dangerous food

safety conduct, regulates administrative authorities and creates the provisions

for judicial enforcement of food safety issues. The FA 2003 does not explicitly mention the

words ‘food adulteration’ and ‘food contamination’, but it does list several types of offenses

that cover food adulteration and contamination, namely the handling of food in an unsafe

manner, sale of unsafe food, false description of food, and handling and selling of unsuitable

food.

2.3.3. Fair Trading Act 1987 (NSW)

Australian Consumer Law (ACL) is adopted through s 28(1) of the Competition and Consumer

Act 2010 (Cth), and Fair Trading Act 1987 of NSW (FTA 1987). It is operated consistently in

each state and territory. ACL consists of Schedule 2 and regulations that are made under s 139G

of the Competition and Consumer Act 2010 (Cth). To make ACL applicable, each state and

territory has enacted legislation stating that ACL is a law of its jurisdiction. The ACL is a

cooperative reform of the Australian federal government and the governments of states and

territories.

Some important provisions have been set out in the ACL, such as the regulation of ‘misleading

and deceptive conduct’ and provisions related to ‘false and misleading representations’. S 18

of the ACL forbids a person to engage in misleading or deceptive conduct. Meanwhile, s 29 of

the ACL regulates that any person is prohibited to falsely represent any goods in terms of their

quality, value, composition, grade, model, and style. The ACL also contains provisions that

state that if any person breaches this law, the injured consumer is provided access to

compensation.

In NSW, the provisions of the ACL have been adopted through Part 3 of the FTA 1987. Section

28(1)(b) of the FTA 1987 states that for the purpose of the application of ACL in NSW, it will

be referred as the Australian Consumer Law (NSW) (ACLNSW). Several important provisions

are stipulated in the ACLNSW in addition to the general protection regarding ‘misleading and

deceptive conduct’ and specific protection in relation to the ‘false and misleading

representations’ regarding such conduct. Section 18 of the ACLNSW forbids any misleading

or deceptive conduct (or conduct that is likely to be so) by anyone in trade or commerce.

Section 29 of the ACLNSW prohibited any person to falsely represent any goods in terms of

Chapter 2: Legal Framework for Food Safety in Indonesia

‘a particular standard, quality, value, grade, composition, style, model ... history or any

particular previous use’ in relation to the supply or possible supply of goods or services and so

on.

2.3.4. Food Regulations 2015 (NSW)

The FA 2003 through section 102 stipulates that regulations can be established to prescribe a

food safety scheme under the Act for any food, food business or related activity in order to

ensure food safety. The inclusion of a particular food, food business or associated activity is

due to the particular attention of such food, business or activity being identified as higher risk.

Provisions such as handling of food, temperature, licensing in relation to food businesses, and

for the preparation, implementation, and maintenance or monitoring of food businesses can be

made. Therefore, to trigger s 102 of the FA 2003, the FR 2015 has been enacted.

The FR 2015 covers the provisions regarding the issues of the food safety scheme in relation

to dairy, meat, egg, plant products, seafood, and shellfish businesses, as well as businesses that

provide food for vulnerable persons. It also regulates business licensing, and prescribes the

fees and levies for licences required, and the charges for inspection and audit of such food

safety schemes, as well as other fees and charges payable for the purposes of the FA 2003.

The FA 2003 is connected with the ANZFSC to create comprehensive food safety standards

and requirements, while the FR 2015 details the modifications of the ANZFSC provisions for

its application to food safety schemes and food handling in NSW.

2.3.5. Provisions of the Food Authority

Part 9 of the FA 2003 provides the provision that states that there will be a body called the New

South Wales Food Authority (NSWFA). NSWFA functions to ensure food safety through NSW.

It administers and enforces the FA 2003 and the ANZFCS as well as food safety schemes under

the FR 2015.

Overall, the LFFS of NSW consists of a few laws that are well coordinated rather than

consisting of multiple pieces of law regulating various foods. It is very clear that ANZFSC was

formulated by the FSANZ and it is implemented by the FA 2003. Besides, the LFFS of NSW

contains the enforcement of the ACLNSW which aims to protect consumers from deceptive

behaviour of food producers. The implementation of all food safety laws is under the

coordination of NSWFA. Therefore, it is safe to say that the LFFS of NSW is not complicated

and is well coordinated. Due to its simplicity, the LFFS of NSW can be disseminated and

Chapter 2: Legal Framework for Food Safety in Indonesia

introduced effectively to consumers. Also, the issue of overlapping between agencies can be

resolved by signing an MoU. This is a great example that Indonesia can learn from NSW.

2.4. Issues in Indonesian Legal Framework for Food Safety

This study establishes that there are several issues in the Indonesian LFFS which can affect the

applicability of the laws and regulations as well as their enforcement. Those issues are less

useful provisions, multiplicity, and problems in the documentation and dissemination of the

laws and regulations. These shortcomings in the Indonesian LFFS are analysed in the

subsections below. The discussion of these problems is followed by some ideas that are

obtained from discussion of the LFFS of NSW to improve the effectiveness of the Indonesian

LFFS.

2.4.1. Less Useful Provisions

The laws and regulations in a legal framework should be clear on what is allowed and what is

not, and should be applicable and practicable to ensure their implementation.99 However, some

food safety regulations and requirements in Indonesia cannot be enforced effectively due to

several drawbacks.

For example, provisions regarding prohibited food additives that are regulated through the

Minister of Health Regulation 33/2012 on Food Additives and Head of NADFC Regulation

11/2019 on Food Additives. In their appendixes, there are only 19 ingredients prohibited to be

used as food additives. By providing the list of prohibited additives, it implies that the types of

additives that are not listed are not forbidden. In fact, it is possible for wrongdoers to use other

materials that have not been mentioned in these regulations. So many other materials can be

misused by fraudulent food businesses. For instance, in Indonesia, there are many reports of

paracetamol abuse in food.100 Paracetamol is added during the boiling process, especially to

meat that has a tough texture. Using this method, it is claimed that a paracetamol tablet can

tenderise meat faster, reducing cooking duration and saving on fuel.

Paracetamol can easily be found in drugstores, and commonly used as antipyretic and analgesic

drug (pain killer). Misuse of paracetamol (such as for cooking) can cause health issues such as

severe kidney problems. The chemical feature of paracetamol will react if heated and can turn

to be harmful for human health. In Indonesia, the use of paracetamol in food is not proscribed

in any way by any regulations. The existence of less anticipative provision as such weakens

the performance of NADFC. Less anticipative provision makes it difficult for food control by

Chapter 2: Legal Framework for Food Safety in Indonesia

NADFC, because there will be many cases of use of additives that have not been stipulated by

regulations.

In Australia, the Food Standards Code only provides a list of permitted food additives, namely

in Schedule 15 (substances that may be used as food additives) and Schedule 16 (types of

substances that may be used as food additives). This list is also accompanied by rules regarding

the maximum permitted level (MPL). There is no list that contains additives that are prohibited

from being used as food additives, so that additives that are not regulated in the list are

prohibited from being used in the food production process. Food safety regulators can imitate

this method so that regulatory readers can understand well and food safety violations can be

minimised. Meanwhile, if producers wish to use food additives that have not been registered,

these additives can be submitted to the NADFC for scientific testing and risk assessment to

determine the benefits, dangers, and risks to human health.

(i) Too Lax Food Safety Provisions

Food that is not contaminated with bacteria (or the contaminants do not exceed the acceptable

limits set out in regulations) is one of the criteria for safe food. Bacterial contamination is

measured using Total Plate Count (TPC).107 TPC is the method to count the total number of

microorganisms in food by planting one gram of diluted sample into a petri dish, then

incubating for 24 hours at 35-37°C.

TPC is one of the most common of the microbiological methods used to evaluate the overall

quality of foods. The TPC limit for each food is different from each other depending on the

type of food. For fishery products, the TPC limit is 5x105 colonies/gram, egg products are

5x103 colonies/gram, and dried fruit is 5x104 colonies/gram.

However, according to Sumarto et al., the use of the TPC method cannot be used as a food

safety requirement for all types of food products. For example, low-acid canned foods, such as

canned fish, soups, and broths, must undergo processing and preservation to achieve

commercially sterile conditions. The measure of the adequacy of the heat process in this

canning procedure is usually expressed by the value of F0. To achieve commercial sterile

conditions, it is required that the heating process must be able to inactivate heat-resistant spores

Chapter 2: Legal Framework for Food Safety in Indonesia

of Clostridium botulinum, so that Clostridium botulinum spores are found to be less than 10-9,

equivalent to the value of F0=2.54.

Based on the results of Sumarto et al.’s research, it is known that of the 131 canned food

products in Indonesia, the heating process has an adequate number of heat values (F0 values)

varying 1.9-149 minutes, and only one product sample whose F0 value is less than 2.54 (i.e.

1.9). Therefore, the use of the F0 value as a food safety parameter requirement will be more

effective in ensuring the food safety of canned products, compared to TPC requirements. The

requirements contained in the NADFC standards/regulations regarding canned products

are clearly very lax and irrelevant to the purpose of the sterilisation process and cannot

encourage producers to improve the food safety of their products.

(ii) Too Strict Provisions

In addition to the loophole above, in LFFS there are provisions that are too strict so that they

cannot be applied to all food businesses. For example, the TPC requirement for soy milk is

5x104 colonies/gram. This requirement applies to both branded and unbranded soy milk

products. Based on several previous studies, it is known that all branded soy milk products

meet the TPC requirements. Meanwhile, for unbranded soy milk, based on several studies in

various cities, all of them have TPC that exceed the maximum limit. In fact, unbranded soy

milk products are very popular and familiar to the public because of their affordable prices and

easy access.

Branded soy milk products can meet TPC requirements because they are supported by more

advanced technology, while non-branded soy milk producers are usually home industries with

low capital and skills. Research by Theofanny et al. that tested soy milk products from six well-

known brands that sold in Denpasar showed that the soy milk samples were all proven to meet

the TPC requirements and are safe for consumption. According to the study, packaging

materials, distribution and storage processes of products affect the results of TPC testing. In

addition, a filthy environment also causes TPC with a very high population and number of

microorganisms that leads to the emergence of many cases or symptoms of disease and food

poisoning caused by pathogenic bacteria, especially those that cause stomach diseases such as

typhus, paratyphoid, cholera, and dysentery caused by Eschericia coli, Salmonella and

Chapter 2: Legal Framework for Food Safety in Indonesia

Staphylococcus aureus.

This statement is also supported by the results of research by Safrida et al. who conducted a

test on six samples of unbranded soy milk sold in six different places in Jaya Baru, Aceh City.

From the results of the study, it was found that the six samples did not meet the TPC

requirements. In general, the soy milk processing industry is a home-based industry with

limited capital, low knowledge of sanitation and hygiene, and processing is still done manually

and traditionally so that it has the potential for contamination of pathogenic bacteria. Sources

of contamination by pathogenic bacteria can occur through raw materials, additives, packaging

materials, equipment and the environment as well as workers.123 Contamination of

microorganisms in soy milk can be caused by the use of dirty tools, dirt around the processing

container and can also come from unhygienic raw materials and dust or other factors that cause

contamination of the soy milk.

This issue shows weaknesses in food safety regulations or requirements in Indonesia.

Consumption of food products containing bacterial contamination that is more than the

maximum dangerous limit can occur. A number of diseases can infect consumers of this

dangerous product. In this case, consumers are very disadvantaged. Therefore, it is important

for all food businesses to meet the requirements regarding the maximum TPC limit. The failure

to fulfil the requirements for the maximum TPC limit on soy milk products produced by the

home industry is a sign that the existing requirements cannot be complied with by all levels of

food business actors. This should catch the government’s attention that household-scale

business actors or MSMEs need assistance from the government.

Sumarno, Hariyadi and Purnomo’s research shows that, in general, the factor that causes the

low level of application of food safety standards and regulations is the non-practice of the

principles of developing good standards and regulations. In particular, the factors that hinder

the application of food standards and regulations are the low level of: (i) dissemination of

information on the development of the preparation of regulations, especially from technical

agencies; (ii) discussions that take into account the interests and involvement of all interested

parties.

Chapter 2: Legal Framework for Food Safety in Indonesia

These factors arise partly because of differences in perceptions between the government and

industry, where the government considers that the current process of formulating and

developing standards and regulations is in accordance with the principles of formulation and

development of good standards. However, according to the industry, the good principles have

not been fully implemented.

The principle of transparency needs to be strengthened by (i) providing information on the

formulation and development of standards and formulations via the internet or websites of

authorised government agencies (NSA and NADFC); (ii) providing the widest possible access

to all interested parties to actively participate in providing suggestions and input during the

discussion of standards and regulations, especially from the MSME group and regional

agencies through association forums; and (iii) more effectively implementing the

standardsetting and discussion procedures in technical committee meetings set by the NSA.

When discussing and setting standards, it is important to ensure that the aspirations and

opinions of all groups of agencies are taken into account and decisions are reached by

consensus. Effective and relevant principles need to be strengthened by (i) base-line studies to

obtain an overview of the real conditions of products and practices in the industry; (ii)

consideration of infrastructure readiness (test laboratories, human resources, etc.); and (iii)

taking into account the dimensions of national development, in particular (a) the interests of

MSMEs; (b) development of local raw materials, and increasing the competitiveness of

Indonesian products in the discussion of standards.

2.4.2. Multiplicity in Food Safety Legal Framework of Indonesia

Multiplicity of laws in a legal framework is not always a negative thing; however, it must be

followed with a strong coordination so that overlap or confusion issues can be avoided. This

thesis establishes that Indonesia failed to create solid coordination between laws and

regulations.

Overall, as of early 2020, there are approximately 39,562 laws and regulation in Indonesia

that include 3,669 central regulations, 15,734 ministerial regulations, 4,177 non-ministerial

bodies regulations, and 15,982 local regulations. In addition, there are still 36 regulations

from the Dutch colony. According to the NADFC legislation directory, as of early 2020, there

Chapter 2: Legal Framework for Food Safety in Indonesia

are 88 regulations related to food safety that are enacted in several forms of regulation such as

Acts, government regulations, ministerial regulations, and Head of NADFC Regulations.

In fact, the NADFC has already started making efforts to minimise multiplicity. For example,

the NADFC Regulation 11/2019 on Food Additives was issued to simplify the regulation

regarding food additives that was previously regulated in 26 NADFC regulations, as well as to

update the substances to suit the development of food science and technology. However, there

are still many food safety requirements related to one object that are regulated in numerous

pieces of regulations; for example, the maximum limit for types of contamination in food is

still regulated in numerous pieces of regulation.

In addition, the problem of multiplicity still exists because the preparation of food safety

regulations in Indonesia is under the authority of several authorities. Various authorities based

on their respective fields establish these food safety laws and regulations (including food

standards). GR 86/2019 on Food Safety regulates that the Ministry of Agriculture as well as

the Ministry of Fisheries and Marine Affairs takes the responsibility to develop regulations for

fresh food; NADFC is authorised to establish requirements for processed food; the Ministry of

Health is responsible to set out regulations for ready-to-serve food; and local government

enacts the regulations for food produced by home-based industry.

Often, two different authorities govern one object. For example, the Minister of Health and

NADFC regulate many of the same objects, such as food additives, food labels and packaging.

Some of the contents of the provision regulate the same thing; for example, the class of food

additives that are allowed to be used in food production is regulated in the two regulations

issued by the Minister of Health and the NADFC.

2.4.2.1. Problems with Updating Regulations

The multiplicity of laws also makes it difficult to update the regulations. To be in accordance

with the developments in society, the law must be updated periodically. Therefore, with such

multiplicity, if a provision in a regulation is amended, then other regulations stipulating similar

matters must also be amended too. Unfortunately, that is not the case in LFFS in Indonesia. For

Chapter 2: Legal Framework for Food Safety in Indonesia

example, the Ministry of Health Regulation 722/Menkes/Per/IX/88 on Food Additives regulates

the types of food additives that are permitted. This regulation was later amended by the

Minister of Health Regulation 33/2012 on Food Additives because it was not in accordance

with food science and technology. Then in 2019, NADFC issued the Head of NADFC

Regulation 11/2019 on Food Additives which included a list of permitted food additives, but

with some changes. For example, in the Minister of Health Regulation 33/2012 on Food

Additives only three types of food additives are permitted in the Propellant class, but in the

Head of NADFC Regulation 11/2019 on Food Additives there are four of them. The Minister

of Health Regulation 33/2012 on Food Additives does give the NADFC the authority to add or

reduce the types of food additives that are permitted, but if the contents of the two regulations

are different it will cause overlap and confusion.

The multiplicity of laws and regulations also complicates the dissemination of regulations. This

will be further discussed in the sub-section below.

2.4.2.2. Problems in Dissemination of the Laws and Regulations

Multiple pieces of laws and regulations needs more effort to manage. Multiplicity becomes a

serious problem when the process of disseminating regulations is not carried out properly,

especially if the ability to make a database of the laws and regulations is still very limited. A

regulation must go through the stages of enactment and dissemination so it can be enforced in

Indonesia.144 They are done to inform the community and to make them understand the new

regulation, so that obedience can be increased. One way to disseminate the law is through

the internet, in this case an online database that contains positive laws in Indonesia. Although

there are other facilities to spread the laws and regulations, such as printed media and

television, the internet is a medium that is quite popular among communities. Data from the

Ministry of Communication and Information shows that in 2017 the number of internet users

in Indonesia reached 143.26 million or 54.86 percent of the total population, increasing from

2016 that recorded only 132.7 million people.148

In Indonesia, there are several authorised parties to disseminate regulations through an online

information system, namely:

a. Related ministries

In the context of food safety, related ministries such as Ministry of Health, Ministry of

Chapter 2: Legal Framework for Food Safety in Indonesia

Agriculture, Ministry of Fisheries and Marine Affairs, Ministry of Forestry, and

Ministry of Industry can manage online directories for laws and regulations.

b. The Ministry of State Secretariat

c. Non- Ministerial Government agencies

In the food safety regulation context, NADFC is authorised to manage an online

database for regulations.

The three parties above are also authorised to formulate regulations.

d. National Legal Development Body.

In addition to the above bodies, there is also a system called the National Legal

Information Documentation Network that is coordinated by the National Legal

Development Body. This system consists of units that handle legal documentation in

state institutions, central and regional governments, and state and private tertiary law

libraries to issue an official website to publish the legislation.

e. Private and community organisations.

Although Indonesia has numerous authorities to disseminate laws and regulations through the

internet, the process is still experiencing problems. For example, on 26 December 2019, the

government issued the Government Regulation 86/2019 on Food Safety as an amendment of

the Government Regulation 28/2004 on Food Safety, but until the end of March 2020, the

regulation was only available in a few official and private directories. In fact, these regulations

are not available in the directories of ministries or agencies related to food safety. In addition,

it is very difficult for information seekers to find out that legislation is still in force, amended,

or revoked because the information is not provided.

In Indonesia, there are many private or community organisation websites that re-upload or

rewrite the regulations, causing mistakes in typing. The large number of regulatory information

providers seems to facilitate public access to regulations, but contrarily this raises problems.

The first issue is related to the validity of the regulation text: it was found that the regulation

text that is spread on the government website is not authentic. The validity of the manuscript

in accordance with the original promulgated text becomes an important element that must be

guaranteed by the document provider.

The following sub-sections discuss the recommendations to improve the effectiveness of the

Indonesian LFFS.

Chapter 2: Legal Framework for Food Safety in Indonesia

2.5. Recommendations to Improve the Effectiveness of the Indonesian Legal

Framework for Food Safety

To resolve the issues in the LFFS of Indonesia, this thesis proposes some possible solutions.

These recommendations are obtained from the LFFS of NSW. Those solutions are to build

strong collaboration between food safety related bodies in developing food safety standards; to

implement the unification in food standards making; and to codify the food standards. The

discussion of the solutions can be found below.

2.5.1. Strong Collaboration in Food Safety Standards Formulation

Health protection and food safety must be carried out on a preventive basis. It requires a

proactive intervention which works for the actual and potential hazards. Therefore, policy

makers should prioritise the strategic program by regulating provisions to ensure safe food.

Drafting regulations is a very complex task. The designer must not only master the legal

materials, methods, and techniques of drafting and drafting regulations, but also must master

and understand the policies behind the making of regulations and even other problems outside

the area being worked on, such as the socio-economic impact on lives.

To be able to set quality standards, food standards making should be based on scientific analysis

and evidence which involves a comprehensive review of all relevant information. The process

should encompass risk assessment, which uses information and data obtained from numerous

sources. However, in addition to science, policy makers should also consider societal, ethical,

and traditional factors. The aim of the inclusion of socio-economic matters is to promote

diversity in the domestic market by considering traditions and local culture. Legal formation

should generally be carried out through an integrated and democratic process to produce legal

products along with implementing regulations that can be applied effectively with the support

of legal research and development based on the aspirations and needs of the community. In

Australia, FSANZ is equipped with broad range scientific expertise, including traditional

sciences like toxicology, nutrition, and microbiology. Other than that, statistics, systematic

reviews and meta-analysis, mathematical modelling, new technologies, and behavioural and

consumer sciences are also utilised in standards making.

To accommodates the interests of stakeholders, FSANZ creates committees and groups which

gather business actors, consumers, public health professionals. Those committees and groups

Chapter 2: Legal Framework for Food Safety in Indonesia

are the Advisory Committee on Novel Foods; Allergen Collaboration; Australian BSE Food

Safety Assessment Committee; Consumer and Public Health Dialogue; Food Allergy and

Intolerance Scientific Advisory Group; Health Claims Scientific Advisory Group;

Jurisdictional Forum; Packaging Advisory Group; Retailers and Manufacturers Liaison

Committee; Social Sciences and Economics Advisory Group; Surveillance and Monitoring

Working Group; Tutin Steering Committee; and Expert Advisory Group on New Breeding

Techniques. The discussion below describes the main groups and committee organised by

FSANZ.

a. Consumer and Public Health Dialogue

When setting new standards, consumers may be asked what to expect from industry and

government to protect them. The Consumer and Public Health Dialogue (CPHD) is a forum

created by FSANZ to maintain consultation between consumer and public health professionals.

The CPHD consists of representatives from peak consumer and public health bodies, public

health academics and indigenous representatives from both countries. The CPHD helps to

broaden FSANZ’s awareness and understanding of community food and health issues as well

as health priorities to deliver a more effective food regulatory response.

b. Retailers and Manufacturers Liaison Committee

The Retailers and Manufacturers Liaison Committee (RMLC) arranges meetings for FSANZ

and business actors. The aim of the committee is to foster dialogue between FSANZ and

industries to enhance information sharing, and revise the agreement used in the event of food

safety emergency. It gives them opportunity to have a discussion regarding issues in developing

standards, processes of standards setting, and collaborate in case of food safety accident.

The data shared by food businesses is beneficial to raise awareness regarding food safety risks.

Moreover, this information can help FSANZ’s practices in nutrition science, chemical safety,

and microbiology.

Chapter 2: Legal Framework for Food Safety in Indonesia

c. Engaging Scientific Advice

Scientific advices from experts are needed to help FSANZ develop food safety standards.

Therefore, FSANZ engages with universities and other organisations. Besides, every year,

FSANZ also manages a program which provide universities students with opportunities to

conduct scientific projects. In 2016-2017, FSANZ invited two students from the University of

New South Wales to conduct a research and present their findings to FSANZ. Not only giving

the students valuable experiences, this project is also beneficial for FSANZ as it helps this

agency to gain more information through the research projects.

The support received by FSANZ from stakeholders can be seen in the amendment of FSANZ

Advice on Mercury in Fish. FSANZ invited stakeholders (state health departments, fishing

industry, consumer, and public professional) to collaborate in the amendment of FSANZ

Advice on Mercury in Fish. This collaborative approach was successful and brought positive

outcome for FSANZ’s work. This project resulted in a revision and re-release of a pamphlet on

‘Listeria and Food’ which helps the community to have greater awareness on the foodborne

illnesses caused by listeria.

Another example can be seen from the following example. In October 2018, FSANZ was

requested to revise the Code to include a provision which requires pregnancy warning label on

packaged alcoholic beverages. FSANZ was asked to conduct this task quickly. Accordingly,

FSANZ set out ‘Proposal P1050- Pregnancy warning labels on alcoholic beverages’, that was

announced to the public in November 2018. FSANZ then arranged a dialogue with the alcohol

business and public health sectors in Sydney and Wellington. The stakeholders suggests

FSANZ to conduct consumer testing to know if the wording of the pregnancy warning label

effective in informing consumers and to find out whether the design of the labels draws

consumer attention.179

The collaboration between stakeholders has successfully helped FSANZ to develop effective

food safety standards. Because of such a system, the standards and measures issued by FSANZ

have created a safe food supply. In fact, the effective and risk-based standards have contributed

to the economic success of food industries in Australia.

Following the framework of cooperation between stakeholders in the preparation of food

standards, this thesis proposes that Indonesia accommodate more the interests of the

community including the food industry and consumers so that food standards better reflect

Chapter 2: Legal Framework for Food Safety in Indonesia

what they need. For this reason, groups of consumers and industries can be formally involved

in the process of preparing food standards. Also, universities and other groups of scientists can

be consulted in the process of risk-based analysis, because the key to success is continuing the

partnership with organisations and experts from universities and other research organisations.

Finally, quality standards can help consumers to make confident food choice nationally and

internationally.

2.5.2. Unification of Food Standards Making

The involvement of several authorities in establishing food safety regulations has proven to

have caused weaknesses in the Indonesian LFFS. By contrast, in NSW, food standards in

Australia are developed and maintained by a single body, namely the Food Standards Australia

and New Zealand (FSANZ).184 FSANZ was established by the Food Standards Australia New

Zealand Act 1991. The Act was enacted to implement an Intergovernmental Agreement

between the Australian Government and all states and territories and a treaty agreement

between Australia and New Zealand. The aim of FSANZ is to develop science-based standards,

give evidence-based advice, coordinate regulatory responses, and provide information

regarding food standards.185

The collaboration between FSANZ and ministries in NSW is very well coordinated,

complementary and very active. For example, in April 2017, the member of the Forum was

unanimous that the food regulation system is creating robust food safety effects, and they have

agreed on three priority areas for 2017-2021 to make the system stronger. One of the priorities

is to minimise foodborne illness caused by Campylobacter and Salmonella. At the

recommendations of the Forum, FSANZ is reviewing Chapters 3 and 4 of the Code to ensure

an appropriate and up-to-date approach to through-chain food safety management in Australia.

FSANZ examines the consistency and currency of the standards in Chapters 3 and 4 and will

consider:

a. requirements for food safety management in the food service sector and closely related

retail sector; and

b. potential development of a primary production and processing (PPP) standard for

highrisk horticulture products to introduce requirements to manage food safety on-

farm, including requirements for traceability.

Chapter 2: Legal Framework for Food Safety in Indonesia

FSANZ claimed it has a successful key source of information regarding food standards and

food regulation in Australia (and New Zealand). The FSANZ reports that stakeholders

consistently notify a great satisfaction with the performance of FSANZ and the information it

provides. Stakeholder survey in 2019 shows that almost 70% of stakeholders are either very

satisfied or satisfied with FSANZ’s performance in the last two years. Moreover, the standards

stipulated by FSANZ has provided an understandable set of regulations for food industries.

Borrowing the idea from NSW, the current thesis proposes the centralisation of food standards

making by appointing a single body (the body) responsible for developing food standards, like

FSANZ. Like FSANZ, the body will be tasked with setting standards, developing, and

maintaining standards that regulate the use of ingredients, processing aids, colourings

additives, vitamins, minerals, and label requirements that will apply nationally to both domestic

and imported food products. The body must ensure that the published requirements can protect

public health and safety, enable consumers to make informed choices, and prevent misleading

or deceptive conduct.

In addition, following Australia, ministries related to food safety such as the Ministry of Health,

the Ministry of Industry, the Ministry of Fisheries and Maritime Affairs, the Ministry of

Agriculture and the Ministry of Forestry would be incorporated in a forum. This forum will be

tasked with providing guidelines in the form of written policy guidelines to the food body

standards. Also, the forum can also request that a draft regulation be developed, reviewed,

amended, or rejected if the decision issued by the body does not comply with the guidelines

given.

In addition, to be able to avoid multiplicity and duplication, the initiation of a separate body

for food standards making and its collaboration with ministries will prevent sectoral conflict

of interest. Miller III argues that if regulatory administration is decentralised, with rules issued

piecemeal by a variety of independent agencies, this will induce regulators to fashion their

decisions to benefit them. Participation of ministries will create a check and balance

mechanism in the food standards-making process.

2.5.3. Codification of Food Safety Standards

Asshiddiqie stated that legal administration is no less important than the formation of

regulations and law enforcement. In Australia, food standards are incorporated in a code,

namely ANZFSC, which covers food safety requirements. The word ‘code’ in most cases

Chapter 2: Legal Framework for Food Safety in Indonesia

explains a historical, legislative effort to state the law in a systematic and holistic way. A Code

is a type of law that is intended to formulate law so that is becomes controlling, specific, and

comprehensive. In the course of codification, the law is examined to see if it is rational,

coherent, and modern. Obsolete law is removed, and efficient rules substituted for the

inefficient.

Codification has the great advantage of bringing the law up to date, ready to face modern times

with modern ideas.199 Moreover, the advocates of codification- the first movement being led

by Jeremy Bentham and the second by David Dudley Field, among others- insisted that having

a systematic code would simplify the law and make it more accessible and knowable to the

citizenry.

In Australia, the purposes of ANZFSC are to:

a. to accommodates innovations by permitting the use of various ingredients and

additives. This can be done with a consideration of a possible consequential increase in

consumer informational needs;

b. update the old standards and make them applicable for all types of food;

c. develop definitional standards in appropriate cases for foods, describing their main

definitional qualities to provide a benchmark for industry and consumers;

d. keep the standards that regulate individual foods if they are consistent with the

objectives. These standards will be redrafted to facilitate the reader with more

understandable wording;

e. help the community to understand the standards.

The formation of ANZFSC has brought advantages to the implementation of food standards.

This codification has led to food standards that are easier to understand.202 There is only one

food standards code for the whole Australia, the ANZFSC. Therefore, there is no chance of

overlapping or a multiplicity of standards. Moreover, ANZFSC is also equipped with user

guides. These guides aimed to facilitate the industry and enforcement officers to understand

the new standards. The user guides are beneficial for all food businesses, but particularly, these

guides can give significant advantages to small business (with limited resources) by giving

additional assistance. Labelling requirements, food additives standards, and other important

requirements can be found in the user guides. FSANZ has provided the user guides accessible

online through its website.

Chapter 2: Legal Framework for Food Safety in Indonesia

In connection with the dissemination and inventory of laws and regulations, NSW considers

the website as a key communication tool. Therefore, it is regularly upgraded and updates with

information regarding food standards formulation process, and fact sheets on food safety cases.

Due to the complete information it provides, the Code user guides and the Nutrition Panel

Calculator attract many visitors. As with other pieces of legislation, each ministry or

government body in NSW has a practical way that makes it easy for website visitors to access

legislation by providing a link on their respective websites that can be linked to the NSW

Legislation website that is the primary source for NSW legislation. NSW Legislation is

managed by the Parliamentary Counsel’s Office. So the database and resources for accessing

legislation are centred on one portal. Thus, each body or ministry does not have to re-upload

legislation or food standards so that it can avoid the issue of legislation authenticity.

Following the NSW’s ANZFSC seems to have the potential to be the right solution to solve the

multiplicity and duplication problems in the Indonesian LFFS. Food standards in Indonesia can

be codified in a code to facilitate the management of food standards as well as helping the

public to access and understand these standards more easily. In relation to online database

problems in Indonesia, Indonesia can take the example of NSW by creating a central database.

Ministries and agencies of the government need to appoint just one ministry or agency

authorised to administer an internet-based statutory information system. Ministries and

agencies related to the object of a regulation can put a link on their respective websites that

will link to the official website.

2.6. Summary and Conclusion

This chapter identifies some of the drawbacks of the Indonesian LFFS. From the discussion,

some issues that arise for Indonesia need to be solved immediately. There are numerous pieces

of food safety regulations without any coordination among them; as a result, duplication issues

arise. Multiplicity of food standards also causes difficulties in management and dissemination

of food standards to the public. In addition, food standards are found to be less effective and

anticipatory, so that they become a gap allowing businesses to cheat.

Therefore, recognising these shortcomings, Indonesia needs to create a single food standards

agency to address the multiplicity problem. With this special agency, food standards will be

issued from one source, so there is no more duplication in Indonesia LFFS. In addition, the

present study proposes a single food standards code that contains all food standards that apply

nationally. This solution can help to solve management problems and disseminate food

Chapter 2: Legal Framework for Food Safety in Indonesia

standards to consumers, industry and law enforcement. Finally, to overcome the problem of

less-anticipative food standards, the current chapter proposes that, in the food standards

development process, consumer, industry, and research organisations such as universities can

be involved.

A useful law can be useless without its effective administration that entails competent

administrators of the law. Therefore, the following chapter is focused on the administrative

framework for food adulteration in Indonesia.

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

3.1. Introduction

To ensure safe food for everyone, the watchdog bodies must be equipped with a strong

coordination. This chapter explains the current food safety administrative bodies of Indonesia.

The discussion is focused on their roles, compositions, and performances in regulating food

safety. However, the discussion emphasises the National Agency for Drug and Food Control

(NADFC) because it is the primary regulatory body appointed to regulate food safety in

Indonesia, while the other related bodies are also briefly explained in relation to their

coordination with NADFC. The discussion in the current chapter is followed with the

identification of issues that occur in the regulation of food safety by NADFC as well as

coordination issues between NADFC and other related bodies. These issues then will be

analysed in depth and solutions will be offered in the subsequent chapters. The description of

the food safety administrative bodies can be found section 3.2 of this chapter.

To propose possible recommendations, the present chapter also explains the current food safety

administrative framework in New South Wales (NSW). The NSW food safety administrative

framework will be analysed in subsequent chapters to provide insight in the formulation of

solutions to improve performance of NADFC in the regulation of food safety in Indonesia. The

analysis of the NSW food safety bodies along with the recommendations is provided in section

3.3. Finally, section 3.4 provides summary and conclusions.

3.2. Current Administrative Bodies for Food Safety Regulation in Indonesia

The Indonesian food safety administrative framework comprises several types of government

bodies, such as ministries along with their sub-directorates, non-ministerial government

agencies, and local government. The major food safety related bodies include NADFC;

Ministry of Health (MoH); Ministry of Agriculture (MoA); Ministry of Fisheries and Marine

Affairs (MoFMA); Ministry of Trade (MoT); Ministry of Industry (MoI); and local

government.

As the discussion is more focused on NADFC’s, the sub-sections below break down the

directorates and divisions of NADFC that are closely related to food adulteration and

contamination regulation are explained here, personnel, funding, and facilities that support the

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

performance of NADFC. The rest of the sub-sections provide explanation about other food

safety related bodies such as ministries and local government. Several issues on NADFC and

its coordination with other related bodies are also identified in the discussion in the sub-sections

below.

3.2.1. NADFC

NADFC is a non-ministerial government institution that organises government affairs in the

field of drug and food regulation. NADFC is responsible to the President and is coordinated

with the MoH in carrying out its functions. NADFC office is classified into two, namely Central

NADFC and NADFC Regional Offices (NADFC Technical Implementation Units). Based on

s 3 of Presidential Regulation 80/2017 on the National Agency for Drug and Food Control,

Central NADFC has the following functions:

a. preparing and implementing the national policies in the field of food regulation;

b. preparing, stipulating and implementing of norms, standards, procedures, and criteria in the field

of pre-market and post-market control;

c. coordination of the implementation of food regulation with central and regional government

agencies;

d. providing technical guidance and supervision in food surveillance;

e. enforcing food safety laws;

f. coordinating the implementation of tasks, guidance, and providing administrative support to all

organisational elements within the NADFC;

g. managing the properties or assets which are under the responsibility of NADFC; and

h. implementing of substantive support to all organisational elements within the NADFC.

To carry out those functions, NADFC comprises Deputies that cover several directorates and

divisions that work based on their respective fields. Figure 3.1 shows the organisational

structure of NADFC in regulating food (and drugs) in Indonesia.

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

Figure 3.1: Organisational Structure of NADFC

NADFC Technical Implementation Units

NADFC has Technical Implementation Units (TIUs) at the regional level that perform a food

safety surveillance function (see Figure 3.1). There are two types of TIU, namely those located

in Provinces and TIU in Districts or Cities; until 2019, NADFC had 73 TIUs. The organisation

and work procedures of NADFC are prepared based on NADFC Regulation 26/2017 on

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

Organisation and Work Procedures of NADFC (State Gazette of the Republic of Indonesia

180/2017). The TIU was created based on NADFC Regulation 12/2018 on TIU Organisation

and Work Procedures in the NADFC Environment as amended by NADFC Regulation 29/2019.

The table below details the functions of TIUs, their scopes of work, and the differences between

the TIU in Central NADFC, Provincial, and District or City office.

Table 3.1 Functions, Authorities, and Scope of Work of NADFC TIU, Central NADFC,

Provincial and District or City

Function

NADFC Central Work Unit

(NADFC Regulation 26/2017 on

Working Procedure of NADFC)

NADFC Technical Implementation Unit

(NADFC Regulation 12/2018 on Organisation

and Working Procedure of NADFC’s TIU)

Province Office

District/City Office

Scope

National

Regional (Province)

Regional

(District/City)

Supervision and

Inspection

1. Formulation of a food control or

inspection policy

2. Norms, Standards, Procedures

and Criteria for food inspection

3. Provision of food control

technical guidance

4. Implementing food

control/inspection policies

Implementation of

operational technical

policies:

1. Inspection and

certification of food

production or

distribution facilities

2. Food product

certification

3.Food sampling

Implementation of

operational technical

policies through:

1. Inspection and

certification of

food production or

distribution

facilities

2. Food product

certification

3. Food sampling

It can be seen from the table above that NADFC TIU in Provinces and NADFC TIU in the

District or City have similar functions, namely carrying out inspections, certifying food

production and distribution facilities, certifying food products, and carrying out food sampling.

The difference is in the scope of the work area. Those functions are linked to the regulation of

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

food adulteration and contamination because NADFC (both Central and TIU) is responsible

for the regulation of food adulteration and contamination in Indonesia.

To carry out its functions, NADFC receives support for funding, human resources, and

facilities. The discussion below describes the three supporting aspects of NADFC. The first

point below explains the funding that NADFC received, its sources and its distribution. The

second point explains the number of human resources and their composition. The third point

talks about the facilities and equipment given to NADFC to carry out its functions.

1. NADFC Funding

The State Revenue and Expenditure Budget fund NADFC. Annual funds are used for the

implementation of activities in central and regional offices of NADFC. The budget is allocated

for personnel expenditure, purchase of goods and capital, with a proportion that fluctuates

every year depending on the needs and the amount of funds received by NADFC. The budget

obtained by NADFC is managed by the NADFC Planning and Finance Bureau. Planning and

Finance Bureau is a supporting unit that functions to coordinate planning, budgeting,

monitoring, evaluation and reporting of performance, and financial management.

The use of NADFC’s budget is reported annually through the NADFC Annual Report that can

be accessed publicly via the internet. Regional NADFCs also have their respective Annual

Reports that can be accessed universally via the internet. In 2017, NADFC received

1,670,901,581,000 rupiahs (approximately AUD167.90 million).9 Meanwhile, in 2018, the

budget received by NADFC increased to 2,173,728,393,000 rupiahs (approximately

AUD217.37 million). Then, in December 2018 NADFC received a grant from the World

Health Organization (WHO) for drug registration amounting to 1,251,089,000 rupiahs

(approximately AUD120,000), so that the total NADFC budget for 2018 was

2,174,979,482,000 rupiahs (approximately AUD217.49 million). However, in 2019 the total budget

for NADFC fell to 2,090,500,025,000 rupiahs (approximately AUD209.05 million) for

all activities at both the central and regional levels. In 2021, budget given to NADFC for carrying its

functions was down to 1.804.761.685.000.12

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

Commission XI of the House of Representative of the Republic of Indonesia considers that the

budget received by NADFC is still insufficient to carry out its functions optimally.14 As

challenges in food safety regulation in Indonesia increase, NADFC needs an adequate funding.

Not only does it need funds to carry out supervision, but NADFC also needs funds for the

provision of infrastructure such as laboratories; conducting training and upgrading the

competence of its human resources; and implementation of other activities to support

NADFC’s performance. Problems related to NADFC funding and budgeting affect many

aspects of NADFC’s performance such as law enforcement, human resource management,

information technology development, public education, and the provision of laboratory

equipment. These issues will be analysed in Chapter 6 of the thesis on administrative

enforcement.

2. NADFC Human Resources

Based on the NADFC report in 2019, NADFC has 4,681 employees in central and regional

work units throughout Indonesia.15 This number increased from 3,808 employees in 2017. In

fact, this number is not sufficient compared to the ideal number of the NADFC personnel,

namely 8,675 people. This ideal number was calculated based on the comparison of the initial

targets and the performance trend in 2018.18 Also, almost all parts of the NADFC organisational

structure reported a lack of human resources. The table below details the ideal number of

NADFC personnel, the number of existing NADFC personnel, and the gap between the two in

each NADFC division in 2019.

Table 3.2: Ideal, Existing, and Gap Number of NADFC Personnel

Unit

Dep

III

Dep

Main

Inspectorate

Main

Secretariat

NADFC

Central

NADFC

Province

NADFC

District

Ideal

Numb

503

328

361

155

131

697

660

4966

874

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

Actual

Numb

286

182

234

252

286

2598

697

Gap

217

146

127

445

374

2368

177

Note: Dep=Deputy

NADFC’s human resources comprise several levels of education: non-graduates, bachelor

degree, master degree, doctoral degree and professionals, among others. Three work units in

NADFC with the largest percentage of human resources have employees at the

nonundergraduate education level, namely the General Bureau and Human Resources (28%),

the Centre for Data and Information on Drugs and Food (25%), and the Planning and Finance

Bureau (23, 26%). Meanwhile, NADFC regional offices with the largest percentage of human

resources having employees at the non-undergraduate education level are NADFC in Medan

(40.57%), Pekanbaru (40%) and Palembang (35.80%) respectively.

Apart from facing a lack of personnel in terms of numbers, NADFC is also experiencing a lack

of competence of human resources. Almost all NADFC divisions report this deficiency. For

example, the Data and Information Centre Performance Report 2019 reported that in carrying

out its functions, NADFC experienced a lack of human resources with an information

technology background, even though it is a very important component in the implementation

of NADFC data and information management duties and functions. Issues related to the

competence of NADFC’s human resources, especially in the supervision and law enforcement

departments, will be further analysed to determine the causes of these limitations and

appropriate solutions to overcome them. This analysis can be found in Chapter 6 of the thesis on

administrative enforcement for food safety in Indonesia.

3. NADFC Facilities

To carry out its functions, NADFC requires several facilities. Apart from the need for buildings

and transportation, NADFC’s performance is very dependent on the quality of laboratory

equipment and facilities, as food testing is important in food safety regulation. NADFC has

several types of laboratories, namely the National Food and Drug Testing Centre; NADFC

Laboratory in Provinces area; NADFC Laboratory in District or City area; and mobile

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

laboratories. The table below describes the classification and the current numbers of these

laboratories.

Table 3.3: Classification and Current Number of NADFC’s Laboratories

No.

Laboratories

Working Area

Number

Status

National Food and

Drug Testing Centre

Central/National

Accredited

Laboratories in

Provinces Area

Provinces

Accredited

Laboratories in

District/City Area

District/City

Coordinated by the

nearest Laboratories in

Provinces area

Mobile Laboratories

Provinces

Maintained by the

Central Laboratory

The National Food and Drug Testing Centre is a unit that is responsible for the results of testing

in the context of monitoring food products carried out by NADFC. Food sample testing is also

carried out by all NADFC laboratories in Provinces based on the Priority Sampling Guidelines

that are set out annually. NADFC laboratories in the District or City are part of the NADFC

central surveillance system in areas that are difficult to reach, usually in border areas. The

mobile laboratory is a laboratory car that helps NADFC to carry out laboratory tests on food in

hard-to-reach places. With this mobile laboratory unit, NADFC can carry out laboratory tests and

get the results on the spot.

Apart from the scope of its work area, there are several differences between National Food and

Drug Testing Centre and NADFC Laboratories in Provinces. These differences are shown in

the following table.

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

Figure 3.2: The Differences between National Food and Drug Testing Centre and

Laboratory in Provinces

NADFC testing laboratories must meet standards based on Good Laboratory Practices (GLP).

GLP is defined in the Organisation for Economic Co-operation and Development (OECD)28

Principles as ‘a quality system concerned with the organisational process and the conditions

under which non-clinical health and environmental safety studies are planned, performed,

monitored, recorded, archived and reported.’ The goal of the GLP Principles is to promote the

improvement of quality test data and to provide a tool for the management of laboratory studies,

such as conducting, reporting, and archiving.30 The GLP Principles are considered as standards

to ensure quality, reliability and integrity of studies, the reporting of verifiable

conclusions and the traceability of data. It is not permissible to only partially implement GLP

requirements (and still claim GLP compliance) as all of the aspects are equally important.32

Practically, NADFC laboratories must follow the principles of GLP, namely Laboratory

Equipment Standards, Testing Scope Standards, and Competency Standards.

In 2017, The National Food and Drug Testing Centre reported that only 22 out of 31

laboratories (71%) could meet 70% of the Laboratory Equipment Standard. In addition, the

Standard of Testing Scope for NADFC laboratories could only be achieved by 20 out of 31

NADFC laboratories (64.5%). All NADFC testing laboratories could meet 70% of the human

resource competency standards in 2017.Even though the laboratory is the backbone of the

supervision carried out by NADFC, unfortunately the testing facilities owned by NADFC are

National Food and

Drug Testing Centre

Laboratory in

Provinces

•

Sample

Testing

•

Reference

Laboratory

•

Training Centre

•

Issue Raw Reference

Materials

•

Calibration

•

Technical

Supervision in Food

Testing

•

Sample Collection

•

Food Testing and

Reporting

•

Inspection

•

Investigation

•

Certification

•

Consumer

Complaint

Service

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

inadequate. In 2017, the NADFC laboratory only met 28% of the 76.1% NADFC Laboratory

Minimum Standards. This is due to limited equipment, facilities and infrastructure; limited

testing scope; and limited human resource competence.

In addition, the NADFC laboratory does not meet the calibration requirements. The World

Health Organization (WHO) regulates that all equipment, including that used to obtain data

(laboratory equipment) and to maintain standard conditions (for example, refrigerators or air

conditioners), should be operated in fixed specifications. Proof that specifications are being

met can be seen with regular checking. So far, routine testing equipment calibration has only

been carried out by the National Food and Drug Testing Development Centre (NADFC Central

Laboratory), not by other NADFC laboratories. In fact, the requirements for laboratory

equipment calibration are two times per year.

Another issue was reported in 2018 by the National Food and Drug Testing Development

Centre (NADFC Central Laboratory) that the need for reference materials for testing is not

met. This is due to the delay in the arrival of primary reference materials which results in

inadequate production of reference materials. Inadequate reference materials cause delays in

testing food samples. In 2018, only 517 samples (89.45%) of the 686 samples received by

NADFC could be completed on time. Delay in completing food testing affects the

implementation of further actions, namely law enforcement.

This issue related to compliance with NADFC laboratory standards greatly affects NADFCs

regulation and law enforcement. This chapter focuses on the impact on regulation. Enforcement

issues will be analysed in Chapter 6.

Funding, human resources, and facilities are related to one another. Fulfilling sufficient funding

will be able to create adequate facilities. Also, NADFC personnel can perform their functions

optimally if their work needs are met. As identified above, NADFC faces a number of issues

in the fulfilment of these three aspects and this affects NADFC’s performance. Apart from

problems related to funding, human resources, and facilities, NADFC also faces various

obstacles in the implementation of its functions. The points below explain the functions of

NADFC, including standardisation, food certification, law enforcement, and community and

business actor empowerment.

1. NADFC Standardisation

This standardisation function is carried out by the Directorate of Processed Food

Standardisation. This function consists of activities to prepare the formulation of policies,

formulation of guidelines, standards, criteria and procedures, as well as implementation and

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

control, technical guidance and evaluation in the field of regulating and standardising food

products. The Directorate of Processed Food Standardisation plays an important role in

preparing policies and regulations that become references in supervising food safety in

Indonesia and supporting the national food industry to be able to compete at the international

level.48 NADFC’s regulatory function and coordination in the preparation of food safety

standards with other bodies have been analysed in Chapter 2 of the thesis.

2. NADFC Food Certification

S 2 paragraph 1 of NADFC Regulation 27/2017 on Processed Food Registration regulates that any

processed food produced domestically or imported for trading in retail packaging must

have a distribution license. A distribution license is a permit to trade and sell a product after

obtaining a food safety assessment. To obtain a distribution license, business actors must meet

several requirements; among other things, processed food to be registered must meet safety,

quality and nutritional criteria, safety parameters (namely physical contamination, maximum

limit of microbial and chemical contamination food additives and auxiliary materials) in

accordance with the stipulated requirements, as well as label requirements.

In addition, the producing party must meet the requirements, among others, to have a business

license for the type of food registered in accordance with the provisions of the statutory

regulations; and meet the requirements for proper processed food production methods. Then,

business actors must submit a request for an audit of production facilities or distribution

facilities to the NADFC regional office as NADFC is the party authorised to issue food safety

certificates.

This function of NADFC is a form of pre-market regulation carried out by NADFC. The

Directorate of Processed Food Registration is a unit under NADFC that is tasked with carrying

out this pre-market function by assessing safety, quality, nutrition and food labels. The

implementation of the duties and functions of the Processed Food Registration Directorate has

tried to make an optimal effort in accordance with the target of achieving its performance.

However, these efforts still leave problems that are not fully in line with expectations. Through

its annual report in 2019, the Directorate of Processed Food Registration reports that the

implementation of pre-market supervision that it has carried out has not been effective. From

March 1, 2013, processed food is registered through e-registration. E-registration is a

breakthrough to make registration services faster, more effective, efficient, transparent and

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

accountable. The ease of submitting applications for processed food business licenses has

resulted in an increase in the number of processed food permit applications received by

NADFC. This happens because applying through e-registration is not limited by place and time.

In addition, this increase in the number of requests also appeared as a positive impact

from the training or technical guidance held by NADFC to educate and disseminate information

regarding product registration to business actors.

NADFC data from 2015 to 2020 shows a significant increase in the number of processed food

permit registration applications in Indonesia.57 The table below shows the number of

applications and decisions on applications for registration of processed food from 2015-2019.

Table 3.4: Number of Applications and Decisions for Processed Food Registration 2015-

2019

Processed

Food

Registration

Year

2015

2016

2017

2018

2019

Applications

27,251

39,517

43,165

53,589

57,021

Decisions

24,829

36,017

38,977

45,557

51,158

Unfortunately, the increasing number of applications for processed food registration also

affects the NADFC ability to complete their task on time. In 2018, only 87.09% of applications

were completed on time. Through the 2018 NADFC Government Performance Accountability

Report, NADFC considers that its performance in resolving decisions on requests by business

actors is inefficient. This has caused the NADFC performance assessment value to go down

from the previous one (82.90).61

The analysis on the cause of the delay in NADFC registration function can be found in Chapter

6 of this thesis. The discussion in Chapter 6 will also analyse possible solutions to improve the

performance of NADFC in processed food registration.

3. Law Enforcement by NADFC

NADFC TIU often experiences obstacles in supervision and law enforcement, so that food

safety laws and regulations cannot be enforced effectively. One of the obstacles faced by

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

NADFC TIU is in law enforcement in the household food industry. Based on the NADFC

evaluation, of all NADFC reports during 2016 regarding violations in the household food

industry, only 20.48% were followed up by the local government. Accordingly, it is not

surprising that based on NADFC research presented in the 2019 NADFC Annual Report, it

shows that household food industry compliance is lower than other types of food businesses.

In fact, based on Hariyadi's research, household food industry is the type of food business that

most often causes poisoning in Indonesia, namely 39%, followed by food service industries

(20%), snack industries (21%) and processed food industries (13%). This condition is alarming

because this small-scale business entity including household industry is quantitatively

providing a greater supply of food for the community, especially the lower middle class. This

issue related to coordination between NADFC and local government will be further analysed

in Chapter 6 of this thesis that discusses the enforcement of food safety laws and regulations.

4. Community and Business Actors Empowerment

In the food sector, the Small Food Industry and Household Industry are growing rapidly and

are projected to become some of the mainstay sectors supporting growth and the national

economy.66 The proliferation of this industrial group increases the potential for health risks

because capital and professionalism in this business are often inadequate in ensuring the safety,

benefits and quality of their products.67 In addition, considering that the target market is mainly

the middle to lower economic community, and with the increasing number of urban poor people

with various complexities in the informal sector of the drug and food trade, the increasing

number of small industries in urban areas is a challenge for food regulation.

The Food Act 18/2012 stipulates that the government has an obligation to guide, supervise,

facilitate, and ensure compliance of food businesses with food safety standards and

requirements. Likewise, with NADFC, s 4 (letter H) of NADFC Regulation 12/2018 on

NADFC Organisation and Work Procedures of the Technical Implementing Unit regulates that

NADFC functions to manage communication, information, education, and public complaints

in the field of (drug) and food regulation.

Producers are those who best understand their products, including raw materials, quality, and

storage capacity of the products they produce. On the other hand, consumers are in a less

powerful position than business actors. This consumer weakness may then be used producers

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

to get more profit. Consumers tend to choose cheaper product. On the other hand, food

businesses always prioritise high profit. Therefore, to get the best combination between low

price and high profit, business players will have to find a solution. Reducing production cost

by using sub-standard ingredients is one of the strategies.

To reduce production costs, food business actors in Indonesia often replace food additives with

other ingredients that are cheaper or even prohibited. For example, in 2019, in the month of

Ramadan (the fasting month of Muslims), from 16,314 samples, 202 samples contained

Rhodamine-B – a dye in the form of a green or reddish purple crystalline powder, odourless,

which dissolves easily in a bright red fluorinated solution as a dye for textiles or clothing.72

Rhodamine-B is widely used in food to make it more attractive in colour, but also because it is

cheaper than food colouring. The negative effects of excessive Rhodamine-B consumption are

symptoms of swelling of the liver and kidneys, liver diseases including liver cancer and

physiological disorders of the body.

Furthermore, food entrepreneurs in Indonesia often conduct food adulterations due to limited

capital and skills. The high market demand for the cheap food products has created

opportunities for micro, small and medium enterprises to grow and fulfil the demand of the

disadvantaged groups. The growing number of food enterprises in Indonesia can be seen

positively as it is creating jobs but also ensure the food availability. However, the proliferation

of this industry has increased the potential for health risks due to limited capital and

professionalism of business actors.76 In addition, food products are often processed in

traditional ways with low processing abilities and knowledge with skills acquired from generation to

generation, and low levels of sanitation and hygiene.

In 2014, the number of micro small medium enterprises (MSMEs) was 1,243,185 units, and

the results of a survey conducted on 1,504 MSMEs in 18 provinces showed that only 24.14%

of them were able to implement good production methods that were in accordance with safety

standards. In addition, in 2015, out of 60,885 MSMEs in the fisheries sector, only 137 (0.2%)

were able to meet the Sanitation Standard Operating Procedures (SSOP) requirements. For

example, a study of anglers in Central Java shows that not all anglers carry ice blocks when

fishing to maintain the freshness of their catch, even though maintaining fish temperature is

one way to maintain fish quality. So that when it reaches land, the quality of the fish has

decreased.

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

As another example, in Indonesia, street food has become an integral part of people’s lives,

both in urban and rural areas. The advantages of street food are that it is cheap and easy to get,

the taste is good and it fits the tastes of most people. The presence of street vendors has also

become part of the lifestyle of people who need fast food because of their limited time.

However, it is difficult to say how safe street food is, as there are many contributing factors

associated with the safety of street food. The handling is often unhygienic; it allows food to be

contaminated with toxic microbes as well as unauthorised use of food additives. The results of

tests conducted by the NADFC in January to August 2014 showed nearly one-third of street

food sold in 23,500 elementary schools in Indonesia was contaminated with harmful

microbes, and found the use of hazardous materials and food additives that did not meet the

requirements.

In addition, the low compliance of food business actors in Indonesia to food safety

requirements is also caused by the lack of knowledge of business actors regarding food safety,

especially in low-scale food businesses. A research conducted by Aminah and Hidayah showed

that out of 17 samples, three people had good knowledge of food safety, nine were moderate

and five were lacking. A research conducted by Hidayat and Muharrami shows that food sellers

who use formalin in the food production process do not know that formalin is harmful for

human health. The sellers use these chemicals, especially formalin, based on the experience of

other sellers and are tempted to do the same thing because it can increase their profit.

In general, education and dissemination of information on food safety requirements can be

done through training. Traditional approaches such as legislation, inspection, and product

testing have been found inadequate, and training provides solutions and presents long-term and

transferable advantages for the food industry. Yusi’s research shows that business coaching and

training have a positive and significant effect on competitive advantage. This proves that the

guidance and training provided has a role in strengthening competitive advantage and business

independence.

In Indonesia, there has been a lot of training offered by the government to entrepreneurs,

especially those arranged by the Ministry of Industry and Ministry of Trade. However, its

effectiveness is still in doubt because many entrepreneurs who have attended training arranged

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

by the government complain that the training is often too theoretical, the time is too short, there

is no follow-up, and often it does not match their actual needs.93 The NADFC news published

on the NADFC website stated that the training given by NADFC to business actors had the

themes of business registration, good handling and types of materials that are prohibited from

being used as food additives. Further, on the knowledge of business actors on food safety and

regulations, food safety standards will be analysed in Chapter 6 regarding the administrative

enforcement of food safety laws and regulations.

Apart from business actors, consumers’ knowledge of food safety and related regulations,

including knowledge and awareness of their rights as consumers, is also very important.

Consumers take the responsibility to obtain general knowledge of food safety; to be selective

in choosing food products; to implement good food handling practices; and to form consumer

associations. However, unfortunately consumer knowledge in Indonesia about food safety is

still low. Also, consumers have limited abilities in collecting and processing information about

the food they consume, so they have limitations in evaluating food and find it difficult to avoid

the risk of food products that are not of good quality and are not safe for health. Due to limited

knowledge and ability to obtain information, consumers often assume that high quality food

must also have a high price. For the economically weak, they will choose a cheap price that

they can afford. This type of consumer focuses more on affordable prices than other

considerations. They have bought food at low prices, even though the product is of low quality

and its safety is not guaranteed. Finally, consumers unconsciously consume these food products

because, for example, they have an attractive appearance at a lower price.99 Furthermore,

because of the lack of correct consumer information and multiplicity of rules, it is difficult for

consumers to understand their rights. In practice, it is often found that business actors

manipulate information or provide incomplete information to endanger and harm consumers.

Consumers, especially consumers of food products, often suffer losses due to their

consumption of certain food products. According to data from the Yogyakarta Consumer

Foundation, out of 100 consumer respondents, business actors have harmed 89% of them. Of the

various cases, consumers of food products experienced 69.7% of the losses.

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

Indonesian consumers also tend to always maintain harmony and avoid conflict to each other.

This causes consumers to be reluctant to claim their rights whenever they have been

disadvantaged by consuming a product, especially if it only involves small amount of money.

The low level of consumer confidence in consumer protection, accompanied by a permissive

attitude, has an impact on consumer awareness. The reluctance of consumers in Indonesia to

complain when experiencing a loss is also caused by the social and financial imbalance of

consumers’ positions with business actors.

Issues related to consumer knowledge and awareness of food safety and its regulations will be

further analysed in Chapter 6. Meanwhile, consumer knowledge and awareness of their rights

as consumers will be discussed in Chapter 4 of the thesis regarding civil liability for food

adulteration and contamination in Indonesia.

From the discussion above, it can be understood that NADFC has strategic functions in the

regulation of food safety in Indonesia, including food standardisation; food certification; law

enforcement; and community and business actor empowerment. In the implementation of these

functions, NADFC has experienced a number of issues, including the issuance of decisions on

food registration which were not timely; lack of coordination between NADFC and local

government; minimal knowledge of business actors regarding food safety regulations and

standards as well as training that is not in accordance with the needs of business actors; and

lack of consumer knowledge regarding food safety and their rights as consumers.

NADFC Accountability and Transparency

The State Finance Act 17/2003 stipulates that the ministers or heads of institutions in Indonesia

as the users of funds or goods are obliged to prepare and submit financial reports of the

ministries or institutions they lead. For this reason, the administrative bodies involved in food

safety administrative frameworks submit their financial reports every year as a form of

accountability and transparency. These reports are available online and can be accessed by the

public. In addition to financial reports, the administrative bodies also submit an annual report

containing activities that have been carried out in the last year and the challenges they faced.

Every year NADFC submits its annual and financial report that can be accessed by the public

through the NADFC website. In addition, each of the directorate, division, deputy, and NADFC

TIU also do the same thing. The report shows the internal state of the organisation, the

implementation of activities, the process of providing public services, and conformity to the

direction of policies, plans and strategies established by NADFC. In addition, the annual report

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

is a manifestation of transparency and reporting on the implementation of the main duties and

functions of divisions or directorates to relevant stakeholders, as a medium for organisational

work relations both internal and external, and as a medium for feedback information in order

to improve the implementation and realisation of performance on an ongoing basis. For

example, NADFC in Semarang City, through its annual report, reports on the results of quality

control activities for food safety and hazardous materials, results of investigation of criminal

cases in the food sector, and empowerment activities for consumers and business actors.

Regulating food supply deals with many matters, such as ensuring basic food safety, dealing

with human and animal nutrition, protecting environment, regulating food labels, advertising,

and providing education for the community. Therefore, NADFC works with other food safety

related bodies such as Ministry of Health, Ministry of Agriculture, Ministry of Marine Affairs

and Fisheries, Ministry of Trade, Ministry of Industry, and local government. The sub-sections

below describe the duties, functions and authorities of other food safety related bodies that are

coordinating with NADFC in the food safety regulation in Indonesia.

3.2.2. Ministry of Health

The Ministry of Health (MoH) sets standards and requirements in the Indonesian Food Codex.

This codex contains the requirements for food additives that must be met by all food products

produced, imported and sold in Indonesia. MoH also conducts pre-market regulation by

doing food testing and issuing food safety certificates for ready-to-eat processed food located

in the port, airport, or cross-border checkpoints. Subsequently, the MoH also oversees readyto-

eat food business in the region.

In addition to issuing food safety certificates for processed ready-to-eat food in certain areas,

the MoH through its Directorate of Environmental Health along with its sub-directorates carries

out the preparation of food policies, norms, standards, procedures of food sanitation and other

food safety requirements such as food additives. This function of preparing food

safety requirements often overlaps with NADFC. Analyses of this function and the issues that

arise have been discussed in Chapter 2 concerning the Legal Framework for Food Safety

Regulation in Indonesia.

Also, based on s 4 of the Minister of Health Regulation 3/2013 on Extraordinary

Events of Food Poisoning, if there is a case of food poisoning, health centres that know or

receive reports of suspected poisoning are required to report to the local District or City Health

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

Office within 24 hours orally and be followed by written report with copies to Director General

and NADFC. To determine the source of food poisoning, the district or city health office and

NADFC are required to immediately collect, deliver, and test food samples.

However, in practice, the handling of food poisoning cases is not maximally implemented. This

happens because when food poisoning occurs, the Ministry of Health only prioritises the

examination of victims. Meanwhile, the handling of food samples that are suspected of causing

poisoning has received less attention. As a result, food samples are often taken too late to be

checked in the laboratory immediately. In fact, food samples that are not taken immediately

have the potential to be damaged due to the perishable nature of the food. Thus, the results of

laboratory tests are affected or even invalid.

It is not surprising that the 2019 NADFC data states that out of 77 cases of poisoning; only 10

cases could be traced to the cause, while 27 cases of poisoning were left unidentified, and the

cause of the remaining number of cases could only be suspected.120 In fact, in 2019, this

foodborne outbreak has resulted in as many as 7,244 people exposed (3,281 people were sick

and five people died).

The first handling of food samples, of course, is by the consumer or the victim himself or those

around him or her. Sampling should be taken immediately after consuming food and feeling

symptoms of poisoning. The community, as the first handling of poisoning cases, must own the

knowledge of food sample handling. Ministry of Health Regulation 3/2013 on Extraordinary

Events of Food Poisoning states that knowledge regarding the handling and prevention of food

poisoning is provided by district or city health offices by including other related agencies, non-

governmental organisations, religious leaders, and community leaders. This effort is carried

out through an outreach to the community, risk control, and surveillance activities. The

education given is related to increasing public awareness of food poisoning, handling of

poisoning victims, and skills for safe and healthy food management.

Concretely, the Minister of Health carried out education to the public related to food poisoning

by publishing a Guidebook regarding the handling of poisoning for health workers. First is the

Poisoning Management Guidelines for Hospitals that are intended as a handbook for doctors

who work in emergency departments in hospitals who handle acute poisoning cases. It covers

50 types of poisoning management guidelines covering drugs, industrial and

household chemicals, pesticides and natural poisons. The second guideline is one

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

aimed at health centre workers, which consists of four manuals: pesticides, natural poisons,

chemical materials, and food additives.

These manuals can be accessed through the National Poisoning Information Centre (NPIC).

NPIC is a special unit belonging to NADFC that provides poisoning information to the public.

The information provided by NPIC is related to materials that are at risk of causing poisoning,

prevention of poisoning, and first aid to victims of poisoning. The aim is to empower people

to be smart in preventing poisoning and to help treat poisoning before getting medical treatment

by providing first aid information for poisoning.

However, none of the information regarding the handling of food samples suspected to be the

cause of poisoning was available. The cause of poisoning is very important to be traced so that

further actions such as those against business actors who commit violations can be taken. In

addition, knowing the cause of poisoning is beneficial for the victim if he or she intends to seek

compensation from the business actor. This will be further analysed in Chapter 4 of the thesis

regarding civil liability for food adulteration and contamination in Indonesia.

3.2.3. Ministry of Agriculture

Food safety monitoring within the MoA is also carried out by the Agricultural Quarantine

Agency. The Agricultural Quarantine Agency has the duty to organise agricultural quarantine

and supervise biosafety through inspection and quarantine measures against both exported and

imported food products of plants and animals. This is in line with the Sanitary and

Phytosanitary (SPS). The quarantine function is carried out by conducting inspections,

alienation, observation, treatment, rejection, destruction and exemption of commodities

suspected and/or deemed carriers of animal pests and diseases and plant pest organisms.

3.2.4. Ministry of Fisheries and Marine Affairs

The Ministry of Fisheries and Marine Affairs (MoFMA) is responsible for overseeing fresh fish

food products in Indonesia. The MoFMA also determines ingredients that are prohibited from

being used as food additives in fresh fish food products. In addition, it also issues processing

eligibility certificates, integrated quality management program implementation certificates,

and fish processing product health certificates. The MoFMA works for food

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

safety through its Fish Quarantine Body, Quality Control and Safety of Fishery, which was

established due to the emergence of problems in the export of fishery products, namely

rejection by the export destination countries.

3.2.5. Ministry of Trade and Ministry of Industry

The Ministry of Trade (MoT) and Ministry of Industry (MoI) have the task of assisting the

President in carrying out some of the government’s tasks in industry and trade. The Directorate

of Standardisation and Quality Control, including agricultural products, livestock, fisheries,

plantations and forest products, handle supervisions of food quality by the MoI and MoT. The

directorate is tasked with controlling the quality of the commodities to be exported, imported,

and those that will be circulated domestically.

Food safety in MoI is regulated by the Directorate of Small and Medium-Scale Food Industry

under the Directorate General of Small and Medium Industries that has the duty to implement

the formulation and implementation of national industrial development, national industry

policy, industrial distribution, industrial resource development and infrastructure. Besides, it

also carries out industrial empowerment, industrial licensing, entrepreneurship development,

industrial facilitation, industry promotion, industrial services, and technical policy of industrial

development in the small and medium-scale.

3.2.6. Local Government

Local government is tasked with issuing food safety certificates for the household food

industry. In addition, the local government also supervises the requirements for the safety,

quality, and nutrition of the food produced by the household food industry, which is carried out

jointly with NADFC or individually. In addition, together with the MoFMA, they issue

certificates for fresh fish food at the regional level.

From the discussion above, it can be seen that the administrative framework for food safety in Indonesia

consists of several administrative bodies that regulate based on the type of food

business. In addition, each administrative body has the same power in establishing food safety

standards or requirements, issuing food safety certificates, and conducting food safety

inspections towards food businesses under its authority. Also, from the discussion, some issues

in the administrative framework for food safety in Indonesia were identified, particularly in the

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

regulation by NADFC. These issues will be analysed in the subsequent chapters so that

recommendations to improve the effectiveness can be formulated.

3.2.7. Consumer Dispute Resolution Agency (CDRA)

The Consumer Dispute Resolution Agency (CDRA) is an institution that protects the interests

of consumers by accommodating consumer disputes in a non-litigation manner. It is an

independent public agency at the level II area (district or city). CDRA comes with the concept

of resolving consumer disputes quickly, easily and with low cost. The dispute resolution

process at CDRA is fast because the dispute resolution CDRA member must issue a decision

within 21 days after the claim is received.142 It is also easy because it can be carried out by the

parties themselves without the need for a legal representative. Apart from that, it is also cheap

because the fees charged are very affordable to consumers. This concept is to simplify the

dispute resolution process and provide consumers who make small claims that are not

worthwhile when being sued in a district court.

CDRA was formed based on s 49 (1) CPA 8/1999 and s 2 of the Decree of the Minister of

Industry and Trade 350/MPP/Kep/12/2001 stipulating that in every city or district a Consumer

Dispute Resolution Agency must be formed. To implement s 49 (1) CPA 8/1999, Presidential

Decree 90/2001 on the Establishment of CDRA which regulates the establishment of CDRA in

several major cities in Indonesia was issued. Through this regulation, CDRA was established

in Medan, Palembang, Central Jakarta, West Jakarta, Bandung, Semarang, Yogyakarta,

Surabaya, Malang and Makassar. In 2019, the number of CDRAs in Indonesia was 171. CDRA

resolves consumer disputes by implementing Alternative Dispute Resolution (ADR)

mechanisms, such as conciliation, mediation, and arbitration. The disputing parties can freely

choose one from the methods. The role of CDRA in each method is different; in conciliatory

dispute resolution, CDRA’s role is limited to calling consumers and business actors, summon

witnesses and expert witnesses if necessary, provide a forum for consumers and business

actors, and answer questions from the parties regarding the provisions of CPA 8/1999.146

Meanwhile, deliberations regarding the form and amount of compensation are fully left to

consumers and business actors. CDRA will issue decisions on the results of deliberations

between consumers and business actors. In mediation, CDRA members play an active role in

providing advice and suggestions in deliberations between consumers and business actors.

Meanwhile, dispute resolution through arbitration is a non-litigation consumer dispute

resolution process in which the disputing parties fully submit dispute resolution to CDRA.

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

Settlement of consumer disputes using this method is fully carried out and decided by the CDRA

member who acts as the Arbitrator.150

The results of dispute resolution through conciliation, mediation and arbitration are provided

by CDRA members in the form of a decision. If one or both parties do not accept the CDRA

decision, then the ADR decision has no effect. Parties can submit objections to the District

Court within 14 days, and the Court’s decision can be appealed to the Supreme Court. In

addition to resolving consumer disputes, CDRA is also in charge of providing consumer

protection consultations; supervising the inclusion of standard clauses; reporting to the general

investigator; receiving written or unwritten complaints; summoning business actors who are

suspected of having committed violations; summoning and presenting witnesses and imposing

administrative sanctions on business actors who violate the law.154

The CDRA comprises three categories of members, namely a chairperson, a vice chairperson,

and regular members. CDRA members come from be three different backgrounds, namely

government, consumers, and business. Government is represented by a person from

provincial, district or city government. Consumers come from representatives of the

NonGovernmental Organisation for Consumer Protection (NGOCP). Meanwhile, business

actors’ associations or organisations represent business actors. The members are selected from

the district or city where CDRA is located. The minimum number of CDRA in each element

(government, consumer, and business) is three and the maximum is five people with an equal

number of elements, and have at least one person with a bachelor’s degree in law. The

recruitment of CDRA members is regulated in the Minister of Trade Regulation 72/2020 on

CDRA.

In carrying out its functions, CDRA faces several obstacles that negatively affect its

performance effectiveness. These shortcomings are analysed in Chapter 6 of this thesis

regarding administrative enforcement for food safety in Indonesia.

3.2.8. Non-Governmental Organisation for Consumer Protection (NGOCP)

NGOCP is a non-governmental institution that is registered and recognised by the government

and which has activities dealing with consumer protection. Until 2016, there were 426

NGOCPs branches in Indonesia, most of which were located in Java.

In carrying out its duties, NGOCP can cooperate with other organisations or institutions, both

national and international in nature, and report the implementation of its duties to the local

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

government every year. The government can cancel the NGOCP registration if the NGOCP is

no longer carrying out consumer protection activities and is proven to have violated the

provisions of CPA 8/1999 and its implementing regulations. NGOCP duties include the

following activities:

a. Disseminate information in order to increase awareness of rights and obligations as well as

consumer caution in consuming goods or services. Disseminating knowledge

regarding consumer protection including laws and regulations relating to consumer protection

issues;

b. Provide advice to consumers about their rights and obligations;

c. Cooperating with agencies to realise consumer protection, namely by exchanging information

on consumer protection;

d. supervision of goods or services, and consumer counselling and education;

e. Assisting consumers in obtaining their rights, including receiving complaints or consumer

complaints. NGOCP can advocate or empower consumers so that consumers can obtain their

rights independently, either individually or in groups;

f. Conducting joint supervision with the government and the community on the implementation

of consumer protection for goods or services through research, testing or surveys.

Despite the existence of the NGOCP to support consumers in Indonesia, consumers’ knowledge

and awareness of their rights is still low. This issue is analysed in Chapter 6 of this thesis.

3.2.9. The National Consumer Protection Body (NCPB)

The National Consumer Protection Body (NCPB) is an agency whose function is to provide

advice and consideration to the government in an effort to develop consumer protection in

Indonesia. CPB is located in the State Capital and is responsible to the President. To carry out

its function of developing consumer protection in Indonesia, NCPB carries out several strategic

tasks in consumer protection efforts in Indonesia, including to:

a. provide advice and recommendations to the government in the framework of formulating

policies in the field of consumer protection;

b. conduct research and study on the prevailing laws and regulations in the field of consumer

protection;

c. conduct research on goods and/or services concerning consumer safety;

d. encourage the development of non-governmental consumer protection institutions;

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

e. disseminate information through the media regarding consumer protection and promote the

attitude of taking sides with consumers;

f. receive complaints about consumer protection from the public, non-governmental consumer

protection institutions, or business actors; and

g. conduct surveys concerning consumer needs.

The NCPB consists of a chairperson who is concurrently a member, a deputy chairman who is

also a member, and at least 15 people and a maximum of 25 members representing all elements.

Members of the NCPB are appointed and dismissed by the President at the suggestion of the

Minister, after consultation with the House of Representatives of the Republic of Indonesia.171

The term of office of the chairperson, vice chairperson, and members of the NCPB is three

years and can be reappointed for the next term. The chairperson and vice chair of the NCPB

are elected by the members.

NCPB members consist of government elements, business actors, non-governmental consumer

protection institutions, academics, and experts. In addition to requirements such as physical

and mental health requirements, CPA 8/1999 stipulates that NCPB members must have

knowledge and experience in the field of consumer protection. If necessary, the NCPB can

form a representative in the Capital City of the Level I Region to assist in carrying out its duties.

To carry out its duties and functions, NCPB receives funding from the state revenue and

expenditure budget and other sources in accordance with applicable laws and regulations.177

In addition to the Indonesian Administrative Framework for Food Safety that has been

presented above, this chapter also looks at the administrative framework for food safety in

other jurisdictions, particularly, NSW. This is done to facilitate understanding of the NSW

administrative frameworks so it later can give insights to improve the effectiveness of

NADFC’s performance and coordination with other administrative bodies. Analysis of the

administrative framework for food safety in NSW is also discussed in subsequent chapters

regarding administrative frameworks for food safety.

3.3. Current Administrative Bodies for Food Safety in NSW

Regulatory bodies from the Commonwealth and from the state maintain food safety in NSW.

The NSW Food Authority (NSWFA) is the key regulatory agency dealing with food safety in

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

The NSWFA New

South Wales, and is overseen by the Minister for Primary Industries.

performs its functions along with local government and with NSW Department of Health. They

work together to effectively administer and enforce the food safety regulations across the NSW.

Besides this, the Australian Competition and Consumer Commission (ACCC) deals with

consumer related matters through the Fair Trading Office in NSW (NSW Department of Fair

Trading). The following section discusses the NSW food safety administrative framework.

3.3.1. NSW Food Authority

NSWFA was formed under the Food Act 2003 and the Chief Executive Officer manages its

affairs. It is the first integrated regulatory body which is given the authority to regulate the

entire food supply chain. NSWFA claims to have a consistent and coordinated approach in

ensuring safe food for the people in NSW.182 NSWFA protects consumers in NSW by

implementing food safety standards, requirements, and policies; conducting inspection of food

hygiene in place, vehicles, and tools used in the process of food making; encouraging food

businesses in correct handling and sale of food; holding trainings in order to increase food

business compliance with food standards code, food safety schemes, giving assistance in

relation to food safety, etc.

In carrying out its functions, NSWFA may appoint local councils as enforcement agencies.

The explanation of local councils’ functions and authority can be found below.

3.3.2. Local Councils

The NSWFA and local councils work together to ensure that retail food sector meet the standards. The

local councils approve food premises, make sure the compliance of food

standards code, investigate complaints. Local council also conducts education and holds food safety

related trainings.

In conducting inspections, the NSW Food Authority and 128 local councils across NSW work

under a partnership, called the Food Regulation Partnership (FRP). They carry out regular

surveillance of retail food business in their local areas. Under the Food Act 2003, the Council

Environmental Health Officers (EHOs) was assigned to check if good food safety practices

such as temperature control, cleanliness, hand washing and labelling are in place.

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

When foodborne illness occurs, local councils are authorised to receive complains regarding

the suspected food poisoning; unhygienic or improper food handling, storage, transport or

preparation; foreign matter in food; allergens not listed in ingredients; misleading or

incomplete labelling; spoilage; unsuitable or unsafe ingredients; and unlicensed sale or serving

of food in retail businesses (except butchers), or food poisoning affecting any member of a

household.

3.3.3. Food Standards Australia New Zealand (FSANZ)

Food Standards Australia New Zealand (FSANZ) is a bi-national statutory authority which was

established by the Food Standards Australia New Zealand Act 1991 (Cth) (FSANZ Act),

enacted to implement an Intergovernmental Agreement between the Australian Government

and all Australian states and territories, and the treaty agreement between Australia and New

Zealand.189 Responsibility for the development of the food standards rests with FSANZ.190

FSANZ also contributes to the cooperative food regulatory system by providing evidencebased

advice to states and territories and coordinating regulatory responses.

FSANZ’s main function is to develop and provide information about food standards (Australia

New Zealand Standards Code) to all stakeholders.193 Under s 18 of the FSANZ Act, FSANZ

must have regard to any written policy guidelines formulated by ministers (usually health

ministers) from Australian state and territory governments, the Australian federal government,

and New Zealand government. These ministers are incorporated in a forum called The Australia and

New Zealand Ministerial Forum on Food Regulation (ANZFFR).

3.3.4. The Australia and New Zealand Ministerial Forum on Food Regulation

ANZFFR is responsible for developing food regulatory policy and policy guidelines for

domestic and imported foods. ANZFFR signs off on all food standards, and can request that a

draft standard be developed, reviewed, amended or rejected.

The Food Regulation Standing Committee (FRSC), a sub-committee that provides policy

advice to the Forum, supports ANZFFR. FRSC members are comprised of Department of

Health, Industry, Agriculture and/or Primary Industries and/or Food Authorities responsible for

food regulation policy. The FRSC works together with the Implementation Subcommittee for

Food Regulation (ISFR), a subcommittee comprised of senior government officials and local

government representatives. ISFR assists in the development of guidelines to facilitate

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

consistent enforcement of food regulations by food regulators. It also has the objective of

reducing costs to industry in the effective implementation of the food regulations.

3.3.5. NSW Department of Health

NSW Department of Health (NSW Health) contributes to food safety by monitoring and

investigation outbreaks of foodborne illness. NSW Health and NSWFA have joint

responsibility for investigations into foodborne illness in NSW. NSW Health informs and

warns the public about foodborne illness, and investigates patients with foodborne disease to

see if there are common foods they may have eaten. To inform and warn the public regarding

foodborne illness, NSW Health regularly gives advices vulnerable people (for example

pregnant women, and the elderly, and people with immune suppression) to avoid high-risk

foods such as pre-cut melons, soft cheeses, or ready to eat foods.

To identify current and potential exposure risks, NSW Health uses a range of information,

including interview data, hospital records, and restaurant booking lists, public-facing social

media and shopper loyalty program data. NSWFA then investigates the source of any food that

may be contaminated and removes it from sale. Cooperation between NSW Health and

NSWFA in case of foods safety incidents is outlined in the Investigation of Foodborne Illness

Response Protocol–Operational Procedures Manual.

3.3.6. Department of Fair Trading

NSW Fair Trading (DFT) safeguards consumer rights, regulates industries, and advises traders

on fair and ethical business practice.200 DFT administers laws that stipulates the guidelines for

fairness in the countless daily transactions between consumers and food business, and

intervenes in the disputes between consumers and business actor, and enforces compliance

through licensing, inspection, investigations, prosecutions and other disciplinary actions. In

relations to food industry, DFT is authorised to conduct an investigation in cases related to

deceptive product by checking the weights of food products.

3.3.7. Department of Primary Industry

Department of Primary Industry (DPI) Regulators play a crucial role in managing risks to

natural resources, farming, food, and public safety. DPI’s Regulators operate under the

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

Department of Industry Regulatory Policy and their own regulatory policies, which align with

the NSW

Government’s Quality Regulatory Services Initiative. This ensures DPI’s Regulators are

applying a consistent outcomes-focused and risk-based approach to regulation.

Under the DPI, Biosecurity and Fisheries manage the production and labelling of food as well

as risks posed by animal and plant pests, diseases, weeds and contaminants. Fisheries

Compliance is responsible for sharing fisheries resources and conserving NSW’s fish stocks

and key fish habitats.

Although both consist of several bodies, the Administrative Frameworks in Indonesia and NSW

have a number of differences. In Indonesia, there are many bodies involved in food safety

regulation, all of which have the same function and authority. In NSW, the highest body,

namely the NSWFA, coordinates the food safety regulation. The division of the functions of

bodies in food safety regulation is also regulated in detail and well organised. For the

preparation of food safety regulations, standards and requirements, FSANZ with the help of

ANZFFR is authorised for this function. For the food business registration function, the

NSWFA and the local council are empowered to do this, with a clear division of powers

between the two. For the supervisory function, the NSWFA and the local council coordinate to

carry out supervision, divided according to each area of supervision.

More analysis on the coordination between bodies in Indonesia as well as in NSW can be found

in Chapter 6 of thesis regarding administrative enforcement of food safety laws and regulations.

3.4. Summary and Conclusion

NADFC is a government agency that is responsible for the regulation of food safety in

Indonesia. NADFC performs a number of strategic functions such as drafting food safety

regulations; implementing these regulations; coordinating food safety regulations in central

and local governments; providing technical guidance and supervision related to food safety

supervision; law enforcement; coordinating the implementation of duties and functions of each

element of NADFC; NADFC asset management; and implementing of substantive support to

all organisational elements within the NADFC.

NADFC consists of a directorate, division, deputy, and regional offices to support its

performance. In addition, to support the implementation of its functions, NADFC is supported

by several important aspects, namely funding, human resources, and facilities. These three

Chapter 3: Administrative Framework for Food Safety Regulation in Indonesia

aspects are equally important in supporting the implementation of NADFC's duties and

functions.

In carrying out its functions with NADFC divisions and in coordinating with other

administrative bodies, NADFC is experiencing a number of issues. These issues include limited

human resources, facilities and funding. In addition, several drawbacks can be identified in

NADFC, such as issuance of decisions on food registration which were not timely; lack of

coordination between NADFC and local government; lack of knowledge of business actors

regarding food safety regulations and standards as well as training given by NADFC that is not

in accordance with the needs of business actors; and lack of consumer knowledge regarding

food safety and their rights as consumers. Therefore, these problems will be analysed in depth

in subsequent chapters to find out the causes of these issues. It is hoped that relevant and

applicable solutions can be found to improve the performance effectiveness of NADFC and

other administrative bodies.

In addition, this chapter has described the NSW administrative framework in order to gain an

understanding and description of the framework, performance, and systems implemented by

administrative bodies in NSW. In NSW, the administrative framework consists of a number of

administrative bodies that carry out their respective duties and responsibilities. The

administrative bodies work under the coordination of the NSWFA that acts as coordinator.

There are several differences between the administrative framework in Indonesia and in NSW.

First, in Indonesia, these bodies work according to their respective functions and authorities

and have an equal position in food safety regulation, namely drafting regulations,

implementing, supervising and acting, whereas in NSW each body works to carry out its

functions coordinated by the NSWFA which acts as the highest single authority for food

regulation in NSW.

Any regulation requires imposition of liability for noncompliance with or breach of regulatory

prohibitions. Likewise, both Indonesian and NSW food safety regulations contain liability

provisions for wrongdoers. The following chapter will discuss the civil liability provisions for

food adulteration and contamination in Indonesia in light of their equivalents in NSW.

Chapter 4: Civil Liability for Food Adulteration and Contamination in Indonesia

4.1. Introduction

The purpose of civil liability in food adulteration and contamination is to ensure that consumers

can get compensation for the losses they experience as the result of consuming the harmful

food products. Therefore, civil liability provisions can provide adequate remedy to persons

who are affected or injured by unsafe food.

Various laws have been enacted to regulate food adulteration in Indonesia, including

regulations related to consumer protection. In Indonesia, civil liability is regulated under two

pieces of legislation: the Indonesian Civil Code (ICC) and the Consumer Protection Act 8/1999

(CPA 8/1999). The current chapter analyses the effectiveness of the provisions of the ICC and

the CPA 8/1999 and their implementations in compensating consumers.

CPA 8/1999 is aimed at promoting the rights of consumers and fostering the attitude of

responsible business actors. All provisions of laws and regulations aimed at protecting

consumers that came into force before CPA 8/1999 was enacted are still valid as long as they

are not contradictory and not specifically regulated. This is in line with the principle of lex

specialis derogat legi generali which means that specific legal rules will rule out general legal

rules. As well as the ICC, it is still enforced, but everything related to consumer protection

refers to CPA 8/1999. The ICC is still worthwhile and important to discuss, because several

issues in the product liability system in Indonesia in this chapter relate to the ICC and its

implementation.

Previously, in Chapter 3, this study has identified an issue in the role of government bodies in

educating and disseminating information regarding food management that may be useful for

claiming compensation (in the case of food contamination). Accordingly, the current chapter

also investigates the performance of the National Agency for Drug and Food Control (NADFC)

in carrying out its functions in civil liability for food adulteration and contamination in

Indonesia.

To improve the effectiveness of civil liability for food adulteration in Indonesia, the discussion

of each issue is followed with possible solutions that will be sought in corresponding provisions

in NSW. Thus, regulations on civil liability in NSW are discussed in this chapter to give insight

to solve the issues in civil liability regulations in Indonesia. It is important to note that this

chapter only analyses the NSW provisions and regulations that are relevant to the issues

Chapter 4: Civil Liability for Food Adulteration and Contamination in Indonesia

discussed in the current chapter. In addition, bodies involved in the implementation of civil

liability in NSW are also discussed to provide input to improve the effectiveness of the bodies

involved in civil liability for food adulteration in Indonesia.

This chapter is divided into seven sections. Section 4.1 gives an introduction, while section 4.2

discusses the regulation of product liability in Indonesia under the ICC as applicable to food

safety. Section 4.3 discusses the product liability under the Consumer Protection Act 8/1999

(CPA 8/1999), while section 4.4 discusses whether CPA 8/1999 adhered to the strict liability

principle. Section 4.5 discusses the strict liability in NSW. Section 4.6 provides the discussion

on the amounts and forms of damages permitted in law, while section 4.7 examines the role of

the NADFC in helping consumers get compensations due to the damages and injuries they

suffer from consuming harmful food products. Finally, section 4.8 summarises and concludes

the chapter.

4.2. Product Liability under the Indonesian Civil Code (ICC)

The ICC sets out the liabilities of food producers under breach of warranty and negligence. The

part below analyses the provisions regarding the two causes of action in the ICC and their

weaknesses in ensuring consumer protection in Indonesia.

4.2.1. Product Liability for Breach of Warranty under the ICC

There are two types of warranties: express warranty and implied warranty. Express warranty is

generally negotiated by the parties and mentioned in the contract. An express warranty can be

given to a consumer of a food product in the negotiations as a part of the agreement of sale. It

can also be a or it can be an assurance given by the seller in relation to, amongst other things,

the quality of the product. In a food product, an express warranty can be written as part of the

food label. For example, the food label says that the product will be free from defects for some

period from the date of selling, harvesting, or manufacturing. However, express warranties are

infrequently happened in the case related to food products.

Product liability for breach of (express) warranty under the ICC is set out in ss 1238, 1239, and

1243. If the defendant and the plaintiff (producer and consumer) were bound by an agreement,

the plaintiff can claim for compensation based on a breach of warranty. Thus, the third party is

not a party to the agreement, and the aggrieved party other than the buyer of the unsafe food

cannot claim compensation for this lack of privity of contract. Compensation obtained due to

Chapter 4: Civil Liability for Food Adulteration and Contamination in Indonesia

a breach of warranty is the result of not fulfilling the main obligations or additional obligations

in the agreement, meaning the liability arises from the breach of contract.

In liability based on a breach of express warranty, the obligation to pay compensation is nothing

but the result of the application of a clause in the agreement, which is a contractual provision

that both parties voluntarily agree to be bound by it. Thus, it is not the law that determines

whether compensation must be paid or how much compensation must be paid, but the two

parties who determine the terms of their contract and the compensation to be paid. The amount

of compensation can be explicitly determined by the parties to the breached contract, or the

court will ascertain the appropriate amount according to the law of contract.

The provisions on implied warranty can be found under the CPA 8/1999 which is discussed in

sub-section 4.3.1 of the chapter.

4.2.2. Product Liability for Negligence under the ICC

The ICC regulates product liability for negligent acts or omissions. Section 1365 of the ICC

regulates that every act that intentionally violates the law and brings harm to others obliges the

person who caused the loss due to his or her mistake to compensate for the loss, while s 1366

of the ICC states that everyone is responsible, not only for losses caused by deliberate actions,

but also for losses caused by negligent acts or omissions.

Elements of Negligence under the ICC

According to s 1365 of the ICC, to claim for compensation for loss or damage cused by the

negligent conduct of a defendant, a plaintiff needs to prove four elements, as below: a.

Unlawful Act

In the past, unlawful acts were only limited to acts that violate written laws. However, since

1919, the Dutch Hoge Raad (Supreme Court) in the Lindenbaum v Cohen case has expanded

the interpretation of unlawful acts so that unlawful acts are no longer limited to acts that violate

the law but also include: (i) actions that violate the rights of others; (ii) actions that are contrary

to their own legal obligations; (iii) actions that are contrary to decency; and (iv) actions that

are contrary to prudence or necessity in good social relations.

Chapter 4: Civil Liability for Food Adulteration and Contamination in Indonesia

b. Fault

There are two types of faults: intentional acts or omission. Intentional negligence means that

there is an awareness that a normal person would know the consequences of his actions will

harm others. Meanwhile, an act by omission means that there is an act of ignoring something

that should be done, or not being careful so that it causes harm to others. In the context of food

safety, an example of this is that food producers must ensure the right temperature in their

storage areas to prevent spoilage of foodstuffs, or food businesses must ensure that the

foodstuffs they use are properly sanitised to prevent contamination.

c. Damages

The ICC does not regulate the form and amount of compensation, so that the plaintiff can claim

compensation for both economic and pshychological harm. Economic damages include loss of

profits and costs of alternative goods or substitutes, while psychological damages include, for

example, mental shock, fear, disappointment and regret which in practice will be valued in the

form of money. Because there are no specific prescriptions in the ICC regarding compensation,

the plaintiff can demand a return to its previous condition before the plaintiff was injured.

In the ICC there is also a provision regarding vicarious liability that regulates liability for

damages caused by the actions of subordinate employees who work under someone’s

supervision, for example employees other than senior executives in food factories.

d. Causal Link between the Damages and the Unlawful Acts

A plaintiff is required to prove that the damages that he or she suffers are the result of the

defendant’s negligent acts or omissions. For example, a consumer can become ill or may suffer

economic loss, physical or mental injury caused by consumption of unsafe food produced by a

food manufacturer. A person who commits a negligence act or omission is only responsible

for the loss that should be expected as a result of the disputed conduct.

If a plaintiff brings a lawsuit under negligence, he or she is required to prove the mistake of the

business actor. In the context of food safety, for example, a consumer must prove that the

manufacturer has used food additives that exceed the limit, or used hazardous materials in the

production process, or has stored the food in a high temperature place so that it became spoilt

Chapter 4: Civil Liability for Food Adulteration and Contamination in Indonesia

due to its perishable nature. However, it is quite difficult and sometimes almost impossible for

a consumer to prove the producer’s fault. Therefore, product liability under negligence still has

disadvantages; in fact, it is not easy for a plaintiff to prove a defendant’s fault.

The essence of product liability is that business actors are responsible for damage, defects,

inconveniences, and suffering experienced by consumers due to the defective products they

produce. Since many years ago, countries such as the United States, Australia, and Taiwan have

replaced their existing negligence-based laws that required injured parties to prove that the

manufacturer was at fault or negligent. In Indonesia, regulations related to consumer protection

have also developed through the enactment of the CPA 8/1999. The section below analyses

product liability under the CPA 8/1999.

4.3. Product Liability under the Consumer Protection Act 8/1999

The enactment of CPA 8/1999 marked a new era in the consumer protection regime in

Indonesia. Section 19 of the CPA 8/1999 stipulates that ‘Business actors are responsible for

providing compensation for damage, pollution, or consumer losses due to consuming goods

and/or services produced or traded.’

4.3.1. Breach of Warranty under the CPA 8/1999

Section 7 of the CPA 8/1999 states that business actors are obliged to:

a. Have good intentions in carrying out their business activities;

b. Provide correct, clear and honest information regarding the condition and guarantee

of goods as well as provide an explanation of the use, repair and maintenance;

c. Treat or serve consumers correctly and honestly and be non-discriminatory;

d. Guarantee the quality of goods produced or traded based on the provisions of the

applicable quality standards of goods;

e. Provide opportunities for consumers to test or try certain goods as well as provide

guarantees for goods;

f. Provide compensation for losses resulting from the use and utilisation of goods;

g. Provide compensation or replacement if the goods or services received are not in

accordance with the agreement.

Chapter 4: Civil Liability for Food Adulteration and Contamination in Indonesia

In general, an implied warranty may be for the merchantable or acceptable quality of the

products which is presumed to be fit for the purpose. Thus, implied warranty for a food product

means that it should be fit for consumption when it is offered for sale or sold by the

manufacturer or seller.

Elements of Implied Warranty

To claim for a compensation under breach of warranty, generally, a plaintiff is required to prove

that the food business has produced a certain food product that is not acceptable for human

consumption. In addition, the plaintiff must be able to prove that he or she has been injured

due to the particular food that was unacceptable quality.14 He or she can show the existence of

adulterated or contaminated food to help him or her obtain compensation.

4.3.2. Reversed Burden of Proof under the CPA 8/1999

Section 28 of the CPA 8/1999 stipulates that ‘Proof of the existence of an element of fault in

the claim for compensation, as referred to in s 19 is the burden and responsibility of the business

actor.’ Brotosusilo argues that the reverse burden of proof is appropriate to be applied in cases

involving product defects, because it is not the consumer who has to prove the absence of

defects in the product. If the defendant fails to prove that the product was safe, then he or she

must be responsible for the losses incurred.

Provisions on reversed burden of proof are evidence that the construction of consumer

protection law in Indonesia has progressed, compared to the provisions made in the ICC.

However, in practice, the provisions regarding this reverse proof are not sufficient to help

consumers to get compensation for the losses they have experienced because they have not

been implemented consistently. Even though it has been regulated in CPA 8/1999, judges often

operate under the ICC. An example of this can be seen in the decision of the Purwakarta District

Court 08/PDT.G/2014/PN. Pwk, which decided on consumer and business actor disputes

regarding food labels, the judge required the plaintiff to prove the defendant’s fault. Many

experts argue that the ignorance of reverse proof is due to the very strong influence of the

ICC.17 Many judges still have an understanding that the basis for a lawsuit in civil courts is

only under negligence.

Chapter 4: Civil Liability for Food Adulteration and Contamination in Indonesia

In addition, there is an opinion that says that the reversed burden of proof in practice needs to

be applied in a limited manner. The reversal of the burden of proof in the CPA 8/1999 can be

detrimental for consumers, because business actors have the ability to prove their innocence.

This is possible because business actors must understand their products better, and usually

business actors are at a higher economic level than consumers.

4.3.3. Does CPA 8/1999 Adhere to Strict Liability Principle?

In some cases, due to the protective purpose of the regulation, the law makes the business

actors liable to give compensation, even though he or she is without fault (strict liability). This

liability concept is applicable for an unsafe product, including adulterated or contaminated food

product In general, the strict liability principle shifts the burden of the victim’s harm to the

defendant, regardless the fault element, and making he or she liable to pay compensation.

Many opinions say that CPA 8/1999 adheres to the principle of strict liability. For example,

Gunawan said that although it was not explicitly stated, both in the historical document of its

preparation and in the law itself, the CPA 8/1999 embraced strict liability), where the burden

of proof was switched from consumers to business actors. Meanwhile, Ariawan and Griadhi

said, that because of the reversed proof system, CPA 8/1999 adhered to product liability with

semi-strict liability.

According to s 28, the CPA 8/1999 still requires the proof of a business actor’s fault even though

the burden of proof is reversed. Samsul argues that the implementation of the reverse burden

of proof shows that Indonesia is still in the modification stage of liability based on fault, one

step behind the strict liability principle. It is confirmed by a statement from the National

Consumer Protection Body (NCPB) that commented that CPA 8/1999 should be amended to

include provisions of strict liability.

Presidential Decree 18/1978 first recognised the concept of strict liability in Indonesia through

the ratification of the 1969 Civil Liability Convention for Oil Pollution Damage. Then, Law

4/1982 on Basic Provisions for Environmental Management that was amended to be the

Environmental Protection and Management Act 32/2009 contained the issue of strict liability.

In the Environmental Law, strict liability is explicitly regulated in s 88 of this Act which reads:

‘Everyone whose actions, business and/or activities use hazardous and toxic materials, produce

Chapter 4: Civil Liability for Food Adulteration and Contamination in Indonesia

and /or manage hazardous and toxic materials and/or cause serious threats to the environment,

are absolutely responsible for the losses incurred without proving the element of fault.’

However, until 2018, under the environmental law, there were only three court decisions in

Indonesia that applied strict liability to punish the defendant. One of them is the case of Dedi

et al. against the Level I Local Government et al. in the Bandung District Court Decision No.

49 / Pdt.G / 2003 / PN.Bdg, which was upheld by the High Court and known as the

Mandalawangi decision. The decision contains the granting of the class action lawsuit; it stated

that Defendant I, Defendant II, Defendant III and Defendant IV were strictly responsible for

the impact of landslides in the forest area of Mount Mandalawangi and required the defendants

to give compensation of 20 billion rupiah (approximately AUD200 million).

This case was decided by applying the strict liability principle based on the precautionary

principle as contained in the 1992 Rio Declaration (United Nation Conference on Environment

and Development). The judge of the Bandung District Court in his consideration said:

In a state of lack of knowledge, including conflicting opinions that exclude each other,

while the environmental condition is very damaged, the court in this case chooses and

is guided by the principle of environmental law known as the precautionary principle,

the 15th principle contained in the principle of sustainable development (United

Nations Conference on Environmental and Development). Although this principle has

not yet been entered into Indonesian legislation … Indonesia [is] a member of the

conference [and] the spirit of this principle can be guided and strengthened in filling

the legal vacuum in practice. Considering what is the form of liability, then with this

application the proof of the element of fault (liability based on fault) such as the

argument of the plaintiff's claim that the defendants are declared to have committed an

unlawful act becomes irrelevant, because with the application of the ‘precautionary

principle’ liability becomes absolute ‘strict liability’; the most important thing here is

the determination of who is responsible for the impact of the landslide in several corners

of Mount Mandalawangi, and because the ‘notair feit’ arena has caused damages, then

how to recover from these damages.

In the court decision above, strict liability is a powerful strategy to sue defendants for damages

because there is no need to prove the element of fault. Therefore, it is not impossible that strict

liability is applied to help consumers who wish to obtain compensation for the losses they incur

due to consuming adulterated and contaminated food.

Chapter 4: Civil Liability for Food Adulteration and Contamination in Indonesia

4.4. Why Strict Liability is Preferred to Claim for Compensation

Rather than pursuing compensation under negligence or breach of warranty principles, strict

liability has its legal advantages that make it a preferred way to obtain compensation in relation

to food. Under negligence, a plaintiff needs to prove the unlawful act, the fault of the food

producer, the damages he or she suffers, and the link between the damages and the fault of the

food producer, while to establish strict liability a plaintiff is only required to prove that the food

he or she consumed has caused damages to him or her. In a case of breach of warranty, the

plaintiff must prove that the food was unsafe so that it caused damages to him or her, and that

the particular food was not of merchantable quality. But to establish strict liability, a plaintiff

is not required to prove that the food is not merchantable quality.

Apart from the above bases, there other reasons that make strict liability effective in helping

consumers obtain compensation include:

a. The burden of loss should be borne by the party producing the defective or dangerous

goods.

b. Selling goods on the market means that the producer guarantees that the goods are safe

and suitable for use, and if it is proven not to be so, then he or she is responsible.

c. Without the application of strict liability, producers can be sued through successive

prosecution processes, namely consumers to retailers, retailers to wholesalers,

wholesalers to distributors, distributors to agents, and agents to producers. The

application of strict liability is intended to eliminate this lengthy process.

4.5. Strict Liability in NSW

NSW is one of the states that have regulated strict liability in its statutory text. The provisions

regarding strict liability are contained in Part 3-5 of the Australian Consumer Law as adopted

in NSW (ACLNSW) (in Competition and Consumer Act 2010 Schedule 2) which deal with the

manufacturers’ liability for products having safety defects, and they in fact provide strict

liability. The reason that these provisions are considered strict liability is that there is no

requirement to prove negligence on the part of the defendant under this Part for the defect of

the product, therefore a lack of negligence cannot be pleaded to be relieved from liability.

Thus, this thesis recommends that Indonesia can apply strict liability, make food manufacturers

liable for unsafe products, and help consumers obtain their compensation. With the

Chapter 4: Civil Liability for Food Adulteration and Contamination in Indonesia

implementation of the strict liability principle, it is hoped that producers and industrialists in

Indonesia will realise how important it is to maintain the quality of their products. Business

actors who do not maintain the quality of their products are detrimental to consumers; in

addition, they must also bear the risk if the products they produce cause harm to consumers.

Finally, given the discussion above, this thesis recommends that Indonesia can adhere to strict

liability to make producers liable for their unsafe food products. Similar to the ACL, CPA

8/1999 can include provisions regarding strict liability. In addition, this thesis recommends that

CPA 8/1999 be amended in order to better protect consumer rights, and encourage business

actors to continue to develop the quality of their products. Since it was enacted longer than 20

years ago, the CPA 8/1999 has not been updated at all, whereas the issue of consumer protection

is growing and complicated in Indonesia. Many expected amendments to the CPA 8/1999

because they were deemed irrelevant to the current situation. However, until now there is no

sign that the amendments to CPA 8/1999 will be realised. In fact, the Consumer Protection Bill

is not included in the priority list of the National Legislation Program.

4.6. The Limited Amount of Damages

Consumers may experience huge losses due to illness they suffer from consuming unsafe food

products. These losses can include money spent to buy the food product, on medical treatment,

or material losses due to the absence of work. Losses can also be in the form of physical health,

or loss of work. Furthermore, consumers who suffer losses can also experience mental

conditions such as depression, anxiety, embarrassment, and damage to self-esteem.

Section 19(2) of the CPA 8/1999 stipulates that ‘the compensation can be in the form of a refund

or replacement of goods of a similar or equivalent value, or health care or the provision of

compensation in accordance with provisions of applicable laws and regulations’. Section 60 of

the CPA 8/1999 states that if the defendant refuses to pay compensation, he will be subject to

administrative sanctions in the form of a maximum compensation of 200,000,000 rupiah

(approximately AUD20,000). This limitation is very detrimental to consumers.

However, s 236 of the ACLNSW does not set out limitation of damages that can be awarded to

consumers. The court is free to decide how much compensation consumers can receive. Thus,

considering the above rationales, the CPA 8/1999 can remove the provisions that limit the

damages for injured consumers.

Chapter 4: Civil Liability for Food Adulteration and Contamination in Indonesia

4.7. The Role of NADFC in Consumer Protection

Based on the results of the Indonesian Consumer Empowerment Index (CEI) survey conducted

by the Ministry of Trade, the Indonesian CEI value in 2018 was 40.41. This index is far below

the European Union (51.31), Malaysia (56.9), and South Korea (64). One reason is that

consumers do not understand the complaint procedure nor do they know which party is

authorised to receive complaints and accept claims for losses they have experienced after

consuming the unsafe product.

As largely recognised by the scientific literature, consumer empowerment involves

competences, rights, skills, as well as the capability of consumer to collect and utilise

information and the capacity of the market to provide legal and practical protection tools.

Empowered consumers are consumers who aware of their rights and obligations.

To increase public awareness as well as public knowledge about consumer protection, in June

2018, the Association of Southeast Asian Nations (ASEAN) has published ‘Handbook on

ASEAN Consumer Protection Laws and Regulation’. This publication is intended to make the

consumers in ASEAN have access to adequate information in order to build a strong awareness.

The consumers are provided with useful information on ASEAN Member States’ laws and

regulations on consumer protection, the bodies that are responsible for consumer protection,

and information regarding complaints procedures.36

At the national level, the government through the National Consumer Protection Body (NCPB)

published an edition of the Indonesian Consumer Magazine (Konindo) that describes the issue

of consumer complaints and the issuance of recommendations for the relevant government,

and besides that, it is also supported by interviews with several sources and materials from

several experts, which are useful for readers. In addition, the government through NCPB holds

many public lectures, for example at universities to disseminate information in the field of

consumer protection.

In addition, Indonesian consumers tend to prefer to maintain harmony, avoid conflict and be

permissive. This causes consumers to be reluctant to claim their rights when they feel that they

have been disadvantaged by consuming a product, especially if the value of the losses

experienced is small. The low level of consumer confidence in consumer protection,

Chapter 4: Civil Liability for Food Adulteration and Contamination in Indonesia

accompanied by a permissive attitude, has an impact on consumer awareness. Also contributing

to the reluctance of consumers in Indonesia to complain when experiencing a loss is the social

and financial imbalance of consumers' positions compared to business actors.

In addition, consumers' reluctance to sue is triggered by a bad track record of consumer

complaints in Indonesia in various sectors. For example, the following two incidents have

nothing to do with food adulteration, but they show a distressing history of consumer protection

allegations or ligation in Indonesia. In 2009, Mulyasari complained about malpractice she

experienced at a hospital in Jakarta. The complaint was sent to her family via electronic mail,

but it became widely spread to the public. As a result, she was sued by the hospital for

defamation. These consumers are required to face a long trial process of up to five years.

Although in the end she was acquitted of all charges, this incident was a huge concern for the

Indonesian consumers.

Another example is an apartment resident in Jakarta, Indonesia, who complained about the

green open space facility in the apartment he purchased that was not as promised. He conveyed

the complaint through his social media and advised people not to buy the apartment. The

complaint resulted in a lawsuit against the consumer for defamation. The consumer became a

suspect and was convicted based on the Information and Electronic Transaction Law.

These cases show that consumers in Indonesia may be too scared to bring an action for fear of

being sued for defamation. Simanjuntak argues that the consumer’s low understanding of

regulations causes the low index of consumer empowerment in Indonesia, including their rights

and obligations, coupled with inaccurate buying behaviour and reluctance of consumers to

complain. Non-Governmental Organisation for Consumer Protection (NGOCP) is the

organisation that functions to educate consumers regarding the consumer protection (including

their rights). The discussion on NGOCP can be found in sub-section 3.2.8 of this thesis. The

performance of NGOCP in educating consumers is hampered with several issues. Sub-section

6.4.4 of this thesis analyses those shortcomings.

Chapter 4: Civil Liability for Food Adulteration and Contamination in Indonesia

NADFC’s Power to Sue on Behalf of Consumers

To ensure food safety for Indonesian consumers, this thesis recommends that the NADFC is

given a power to file a lawsuit against fraudulent business actors. In Australia, the Australian

Competition and Consumer Commission (ACCC), as administrator of the ACL, is given the

authority to sue the violator of consumer protection laws for damages on behalf of one or more

consumers as a representative action, based on written application of those victims. This special

role of ACCCC can be seen in the proceedings in the Federal Court against H.J. Heinz

Company Australia Ltd (Heinz). Heinze Company product, Little Kids Shredz, contains false

and misleading representations. The product has contravened the Australian Consumer Law

due to its false representations that mislead the public.45 The H.J. Heinz Company Australia

Ltd (Heinz) is liable to pay penalties of $2.25 million. The ACCC had sought a penalty of $10

million for Heinz.46

Solaiman and Ali argue that if regulators are given the power to sue, the overall goal of

consumer protection can be achieved, as well as avoid the case logjam in litigation processes.

In addition, if both victims and regulator are given the authority to sue, it is believed that the

two will most likely hook the lawbreakers. Therefore, this solution is very relevant if applied

in Indonesia, by giving the regulator the authority to sue. This will likely help increase the

effectiveness of civil liability for food adulteration in Indonesia.

The analysis of the civil liability system in Indonesia above shows that CPA 8/1999 is not

sufficient to help consumers get compensation for their losses. In addition, the bodies involved

in civil liability in Indonesia have not functioned optimally due to several shortcomings. Also,

lack of consumer awareness is also leading to unsuccessful consumer protection in Indonesia.

Other Role of NADFC

As explained in Chapter 3, education and information on handling food safety incidents (such

as food poisoning) have not been effective. This is because the information available is only

about first aid for victims of poisoning, which is intended primarily for health workers.

Meanwhile, the handling of food samples that are suspected of causing poisoning has received

less attention. As a result, food samples are often taken too late to be checked in the laboratory

immediately. In fact, food samples that are not taken immediately have the potential to be

damaged due to the perishable nature of the food. Thus, the results of laboratory tests are

Chapter 4: Civil Liability for Food Adulteration and Contamination in Indonesia

affected or even invalid. It is not surprising that the cause of most cases of poisoning in

Indonesia cannot be detected.50

Knowledge related to food sample handling is important for consumers. First, food samples

collected shortly after symptoms of poisoning appear will be of great use to assist food safety

and health authorities to find the cause of poisoning. With confirmation of the cause of

poisoning, it stops the spread of contaminated food and the emergence of similar cases in the

future. In many mass poisoning cases, it is quite easy to detect the cause of poisoning because

there is more than one victim. For example, a case of mass poisoning that occurred in the City

of Probolinggo that befell students in the celebration of 1 Muharram 1442 Hijriah at the

Riyadlus Solihin Islamic boarding school. It is very easy to know that the cause of the mass

poisoning was the food from the catering that was ordered for the event. However, for

individual cases it is very difficult to determine the cause of poisoning. First, the victim may

not be sure which food was the cause of the poisoning, or there may be some other cause that

triggered the poisoning of the person.

Indeed, not all cases of poisoning end very badly. If a patient with food poisoning only have

dizziness and vomiting, either oral of intravenously rehydration maybe enough for him or her.

However, in addition to physical losses, consumers can also experience monetary loss for

medical treatment and job loss.

Therefore, knowing the cause of poisoning is very important to avoid the emergence of other

victims and minimise the occurrence of similar cases in the future. More than that, knowing

the cause of poisoning is beneficial for the victim if he or she intends to seek compensation

from the business actor. As previously explained, in a claim for compensation in Indonesia,

reverse proof is applied. However, consumers are still burdened to prove that the loss they

experienced was caused by the food produced or sold by the business actor. In addition, the

plaintiff should prove that the food was unsafe or damaged when it left the manufacturer’s

control.

In a precarious situation, such as when experiencing symptoms of food poisoning, a person

will be confused about what to do, especially if they do not have knowledge about handling

poisoning and food sample management. Due to the urgency of educating consumers about the

importance of food sample in seeking compensation, this thesis tries to provide input to the

Chapter 4: Civil Liability for Food Adulteration and Contamination in Indonesia

Indonesian government to be able to provide guidance containing instructions for handling

food samples.

Ministry of Health Regulation 3/2013 on Extraordinary Events of Food Poisoning states that

knowledge regarding the handling and prevention of food poisoning is provided by district or

city health offices by including other related agencies, non-governmental organisations,

religious leaders, and community leaders. In Indonesia, the related agency that deals with food

safety issues is NADFC. As mentioned in Chapter 3, NADFC provides information related to

poisoning through the National Poisoning Information Centre (NPIC). However, the

information provided is limited to risk of causing poisoning; prevention of poisoning; and first

aid to victims of poisoning.58 Meanwhile, information on the handling of food samples for

laboratory tests is not available.

In NSW, the Food Authority (NSWFA), through its website, provides information regarding

the handling of poisoning. The information on the NSWFA webpage includes types of food

poisoning and their common causes; explanation of food poisoning symptoms; warning for

vulnerable people; what to do in case food poisoning occurs; food poisoning prevention; how

to recognize food poisoning; and how to make a complaint. Each point is given a link that can

lead to another website page that explains in more detail. In the making complaint page,

NSWFA recommends consumers to store the food left over and provides instructions on the

correct storage method.60 NSWFA is incapable in helping complainants with refund of the cost

of food, compensation, or damages. However, the instructions above can help consumers to

seek compensation for the losses they have experienced. Law firms also state the benefits and

importance of left over storage and packaging.

This can be applied in Indonesia. Through its website, NADFC can educate by including

information that is important to consumers who experience food poisoning, not only regarding

their handling of themselves, but also including useful information for consumers to get

compensation. It is believed that the solution discussed above can help consumers becomes

more confident to seek compensation for the damages they suffer.

Chapter 4: Civil Liability for Food Adulteration and Contamination in Indonesia

4.8. Summary and Conclusion

Under the ICC, a plaintiff can claim compensation under a breach of warranty or under

negligence. However, the provisions of the ICC are no longer in use for matters related to

consumer protection due to the enactment of the CPA 8/1999. The CPA8/1999 was enacted to

provide consumers with better protection by its provision regarding reversed burden of proof.

However, the reversed burden of proof is not effectively implemented in consumer disputes

because the ICC still heavily influences the court. In addition, the current chapter also analyses

the CPA 8/1999 to know whether the CPA 8/1999 adhered to strict liability. The discussion of

the provisions of the CPA 8/1999 found that the CPA 8/1999 is not adopting strict liability, but

is still in the modification stage of liability based on fault, one step behind the strict liability

principle. This chapter argues that the CPA 8/1999 may adopt the strict liability principle to

give consumers better access to obtain compensation. This can be realised by updating CPA

8/1999 and include the provisions on strict liability.

This chapter also finds that the CPA 8/1999 has set limitations regarding the amount of damages

to a maximum 200,000,000 rupiahs (approximately AUD20,000). The limitation cannot be

positively advocated as consumers may be suffering huge damages (more than AUD20,000).

The current chapter proposes that the CPA 8/1999 can remove the provisions that limit the

amount of the damages that can be obtained by the injured consumers, and let the court decide

freely.

This chapter also discusses the role of the NADFC in helping consumers get compensation for

the damages they suffer. The discussion finds that consumers in Indonesia tend to be reluctant

to make claims regarding the damages they suffer due to their unsafe food consumption.

Therefore, it is the task of the NADFC to educate consumers regarding their rights as

consumers. In addition, this chapter proposes that the NADFC can be given the authority to

bring a lawsuit on behalf of consumers.

100

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in

Indonesia

5.1. Introduction

In contrast to civil liability which aims to compensate those who are injured by adulterated

food, criminal liability is to protect the people by punishing the offenders. With this end in

view, criminal liability is designed to punish proscribed conduct to create deterrence which

effectively protects society.

The present chapter investigates the effectiveness of the criminal liability regime in Indonesia.

The criminal liability system for food adulteration and food contamination in New South Wales

(NSW) is examined to demonstrate the effective legislation to criminalise the food safety

offenders. The Food Act 2003 (NSW) (FA 2003) as the main law regulating food safety in NSW

is examined to identify if consumers receive proper justice through its provisions. The

discussion on of the FA 2003 involves the examination of its provisions regarding mens rea,

actus reus, penalties, and defence of the food safety offences. To keep the thesis in manageable

size, the other NSW laws are not discussed in the present chapter.

The discussion of the criminal liability for food safety offences under the FA 2003 is followed

with an analysis of criminal liability regime in Indonesia. The major Indonesian laws, namely

Indonesian Criminal Code, Food Act 18/2012, and Consumer Protection Act 8/1999 (CPA

8/1999) are analysed in this chapter to identify the loopholes in criminal liability system for

the food adulterators in Indonesia. The provisions on mens rea, actus reus, penalties, as well

as defence of the food safety offences under the Indonesian statutory laws are examined. To

improve the effectiveness of criminal liability for food safety offences in Indonesia, the current

chapter proposes some possible recommendations obtained from the discussion of NSW

criminal liability regime.

This chapter is divided into six sections. Section 5.1 provides introduction of the chapter.

Section 5.2 attempts to define the offences and their elements. Section 5.3 discusses food

adulteration offences in NSW, followed with Section 5.4 that analyses the food adulteration

offences in Indonesia. Section 5.5 analyses the issues of the food safety offences in Indonesia.

Finally, Section 5.6 summarises and concludes the chapter.

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

101

5.2. Offences and Their Elements

The commission of an offence generally requires both actus reus (prohibited conduct) and mens

rea (guilty mind). These two elements are discussed below.

Actus Reus

Actus reus is generally an act which consists of a willed physical movement in circumstances

and with consequences that the definition of a particular crime requires. It can also be defined

as harmful consequences which the law seeks to prevent from happening. As a general principle

of criminal law no one can be punished unless the person commits a prohibited act. If the

prosecution fails to prove it, the defendant cannot be convicted. Actus reus refers to both the

act or omission. In the context of food safety, an act or omission can be committed by food

businesses by adulterating food or by neglecting/ignoring mandatory food safety standards.

Mens Rea

Mens rea means guilty mind.8 It is a mental state of the offender at the time of commission of

an offence, with which the person deliberately or negligently violates a law. A basic principle

in criminal law is expressed by the oft-cited Latin phrase ‘actus non facit reum nisi mens sit

rea’, which can be translated as ‘an act does not make a man guilty of a crime, unless his mind

be also guilty’. Bishop added that there can be no crime, serious or trivial, without an guilty

mind. Besides, Gillies stated that it is unfair to punish someone who violates the law, but in

fact he or she has no fault. This opinion is supported by Sigler who states that mens rea is one

of the most important elements of crime that must accompany corresponding actus reus in

order to commit an offence. Ashworth and Horder write that the essence of the principle of

mens rea is that criminal liability should be imposed only on persons who are sufficiently aware

of what they are doing, and of the consequences, it may have, that they can fairly be said

to have chosen the behaviour and consequences. If a person knows the law but he or she

breaches it, evidencing thereby an intent to do so- in other words he or she had mens rea.

Forms of Mens Rea

The culpable states of mind are defined and organised into four different mens rea elements,

namely intention, knowledge, recklessness, and negligence. These mental states are discussed

below.

a. Intention

Intention to commit the prohibited act or omission is treated as the most serious form of mens

rea. Intention of the accused shows his or her actual mental state. Bentham argues that intention

is a key standard for the moral and legal assessment of actions. b. Knowledge

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

102

A food producer has satisfied the requirement for mens rea when he or she is aware that he or

she is producing a harmful food product by adulterating it. His or her knowledge of the event

has caused food becomes unsafe or harmful for consumption. Like the intention, knowledge is

a subjective form of mens rea that is related with circumstantial features of the actus reus. c.

Recklessness

Division 5 of the Criminal Code Act 1995 (Cth) defines recklessness as below:

(1)A person is reckless with respect to a circumstance if: (a) he or she is aware of a

substantial risk that the circumstance exists or will exist; and (b) having regard to the

circumstances known to him or her, it is unjustifiable to take the risk. (2) A person is

reckless with respect to a result if: (a) he or she is aware of a substantial risk that the

result will occur; and (b) having regard to the circumstances known to him or her, it is

unjustifiable to take the risk.

A reckless defendant is less criminally culpable or blameworthy because recklessness requires

a lack of foresight of the consequences as opposed to knowledge of a consequence being

virtually certain. In the context of food safety, recklessness occurs when food business actors

produce food using prohibited materials despite foreseeing that the food he or she produces can

be harmful to consumers. d. Negligence

Negligence is conduct that falls below the standard that an ordinary reasonable man is expected

to maintain. The test is objective, based on the hypothetical reasonable person and involves

either the defendant doing something the reasonable person would not do, or not doing

something which the reasonable person would do in a given circumstance.

The section above describes the traditional mens rea requirement, that a person cannot be

convicted unless the prosecution can prove his or her fault. Nevertheless, the concept of

criminal law has developed into modern point of view and sometimes allows punishment

without mens rea. The following discussion explains more about the relaxation of the mens rea

requirement, particularly for food safety offences.

5.2.1. Relaxation of the Mens Rea Requirement for Food Safety Offences

As described above, traditional criminal law requires the existence of mens rea to punish

someone who has committed a criminal act. However, the development of technology,

economy, and the business world, has reformed the criminal law. This complexity sometimes

make the establishing subjective mens rea challenging. Therefore, criminal law relaxes the

mens rea requirement for certain offences, including food safety offences.

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

103

Candra asserts that the principle of mens rea could no longer be maintained for every criminal

case. Historically, in the context of food safety, since the 19th century, many perpetrators of

food safety crimes have been punished without establishing mens rea. For example, in

Commonwealth v Boynton in 1861, the defendant was convicted even though he had no evil

mind (he did not know that the liquor he was selling was intoxicating). Regulations regarding

relaxation of mens rea requirement for food safety offences continue to evolve around the

world. In the United States, strict liability for food safety crimes was regulated in the Federal

Food, Drug and Cosmetic Act 1938 that says that food manufacturers can be held criminally

liable without the government proving the mens rea.

Section 5.3 below discusses the criminalisation of food adulteration offences in NSW. While

Section 5.4 analyses the provisions of food adulteration offences in the Indonesian statutes.

The discussion encompasses the traditional mens rea requirement and the relaxation of mens

rea requirement of the both jurisdictions. In addition, the structures of mens rea, the broadness

of the actus reus, and the defences available for the defendant are also discussed. The analysis

of the Indonesian statutory laws is conducted to find out whether the statutes have effectively

make food adulterators criminally responsible and to improve the criminal liability system for

food adulteration in Indonesia. The discussion on NSW criminal liability provisions in the FA

2003 is done to obtain recommendations to improve the effectiveness of the criminal liability

regime in Indonesia.

5.3. Food Safety Offences in NSW

The FA 2003 is the major legislation that regulates food safety in NSW. Food adulteration

offences in this statute are stipulated in Part 2 which is divided into three divisions. Division 1

provides the regulation of ‘serious offences relating to food’; Division 2 deals with ‘other

offences relating to food’; while Division 3 regulates ‘defences’. The discussion in this section

focuses on the food adulteration offences.

5.3.1. Food Safety Offences and Their Penalties in the Food Act 2003 (NSW)

In the FA 2003, there are several food safety offences that closely relate to food adulteration.

Those offences are set out in ss 13(1); 13(2); 14(1); 14(2); 16(2); 17(2); and 21 of the FA 2003.

To help the reader to understand better, the points below discuss those sections in three

categories based on the mens rea requirements set out in the offences. The discussion identifies

the actus reus, mens rea, and penalties set out in those provisions in the FA 2003.

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

104

a. Offences with Subjective Mens Rea

Offences that fall into this category require the prosecution to prove the accused’s mens rea.

These offences can be found in ss 13(1) and 14(1) of the FA 2003. Section 13(1) states that ‘a

person must not handle food intended for sale in a manner that the person knows will render,

or is likely to render, the food unsafe.’ While s 14(1) regulates that, ‘a person must not sell

which they did, but the problem of rat infestations still exist. Mr. Park was criminally fined $250. He appealed the

decision saying that he could not have done anything more than what his staffs had done. The Court concluded

that ‘[Mr. Park] had, because of his position in the corporation, responsibility and authority either to prevent in

the first instance, or promptly to correct, the violation complained of, and that he failed to do so.’ Id. at 673-74 (in

Chenglin Liu, ‘The Obstacles of Outsourcing Imported Food Safety to China’ (2010) 43(2) Cornell International

Law Journal 250, 259).

food that the person knows is unsafe.’ In both, there is the word ‘knows’ which denotes a

person’s mental element which implies that they know that the food they handle or sell is

unsafe. The accused’s knowledge must be proved subjectively to be able to convict the

defendant. ‘Knowledge’ is a high degree of fault element of an offence with the onus on the

prosecution to prove. The punishment for these offences is a maximum fine of 1000 penalty

units (AUD110,000) or 2 years of imprisonment for individual defendant. Corporations can be

punished with a maximum fine of 5000 penalty units.

b. Offences with Objective Mens Rea

Section13(2) of the FA 2003 reads ‘a person must not handle food intended for sale in a manner

that the person ought reasonably to know is likely to render the food unsafe’ and s 14(2) reads

‘a person must not sell food that the person ought reasonably to know is unsafe.’ The offences

with objective mens rea can be found in ss 13(2) and 14(2) of the FA 2003. These two sections

set out the same actus reus as in ss 13(1) and 14(1), which are handling and selling of unsafe

food.

Unlike the offences in ss 13(1) and 14(1), the offences stipulated in ss 13(2) and 14(2) do not

require proof of the defendant’s subjective mental state. Both offences use the words ‘ought

reasonably to know’ which require the prosecution to prove that a reasonable person would

have had the knowledge that the handling of food in question would or was likely to cause the

substance harmful. There is no requirement to prove that the defendant actually knew that the

food he or she handled was likely to render the food unsafe. However, the prosecution must

prove that the food was intended to be sold. If a defendant is proven to reasonably to know that

the food he or she sold or handled is unsafe, he or she may be subjected to 750 penalty units

for individuals (AUD82,500) and 3750 penalty units for corporations (AUD412,500).

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

105

c. Offences without Mens Rea

In the FA 2003, offences with relaxation of mens rea can be found in ss 16(2); 17(2); and 21.

Section 16(2) stipulates that ‘a person must not sell food that is unsafe’, while s 17(2) reads ‘a

person must not sell food that is unsuitable.’ Both sections are regulating the sale of food, but

for two different qualities of food, namely unsafe and unsuitable.

Meanwhile, s 21 of the FA 2003 sets out the offences that contravene the compliance of the

Australia New Zealand Food Standards Code (ANZFSC). The s 21 stipulates that

‘(1) A person must comply with any requirement imposed on the person by a provision

of the Food Standards Code in relation to the conduct of a food business or to food

intended for sale or food for sale. (2) A person must not sell any food that does not

comply with a requirement of the Food Standards Code that relates to the food. (3) A

person must not sell or advertise for sale any food that is packaged or labelled in a

manner that contravenes a provision of the Food Standards Code. (4) A person must not

sell or advertise for sale any food in a manner that contravenes a provision of the Food

Standards Code.’

These offences stipulated in s 21 are to ensure that the food business strictly comply and meet

the requirements in the ANZFSC.

Unlike the offences in the first two categories, the offences in ss 16(2), 17(2), and 21 simply

prohibit the food business to conduct the aforementioned actions. The words ‘must not’ used

in those sections indicates that there is no requirement to prove the mental state of the person.

If the actus reus is proven, the defendant can be punished with 500 penalty units (AUD55,000)

for individuals and 2500 penalty units (AUD220,000) for the corporations (for selling unsafe

foods). A defendant proven to be selling unsuitable foods can be subjected to maximum fine of

400 penalty units (AUD44,000) for individuals and 2000 penalty units (AUD220,000) in the

case of corporations.33 For the offences set out in s 21 of the FA 2003 (relating the compliance

of ANZFSC), a maximum fine of 500 penalty units (AUD55,000) in the case of an individual

and 2,500 penalty units (AUD275,000) in the case of a corporation can be imposed. These

penalties are lower than the punishment for the offences with subjective mens rea and offences

with objective mens rea.

An example of strict liability under the FA 2003 can be seen in the case of Takumi Sushi

Restaurant. The defendant company was convicted for breaches under section 21(1) of the FA

2003, for failing to comply with Food Safety Standard 3.2.2 of the ANZFSC, namely: (a)

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

106

Clause 6(2) fail to store potentially hazardous food for sale under temperature control. The

potentially hazardous food for sale was prawn nigiri pieces (measured as 23.8 C), salmon and

black rice rolls (measured at 21.3 C) and tuna and avocado rolls (measured at 21.6 C); and

(b) Clause 6(2) fail to store potentially hazardous food for sale under temperature control. The

potentially hazardous food for sale was prawn nigiri pieces (measured at 24.4 C), grilled

salmon (measured at 26.5 C) and chicken and cucumber rolls (measured at 24.3 C) not stored

under temperature control. For violating these rules, Takumi Sushi Restaurant was fined

AUD$5000 for two offences.

The discussion above has shown that there were three tiers of food adulteration offences in

NSW where the penalties for the defendant are escalated based on the mental state of the

defendant. The points below analyse the keys of an effective criminal liability for food

adulteration under the FA 2003, namely well-structured mens rea; broad actus reus; adequate

penalties; limited defence for food adulterators; and provisions on the persons liable for food

adulteration.

Three-Tier Penalty Model in the Food Act 2003 (NSW) Tier 1 offences

The prosecution defines the penalty based on the defendant’s state of mind. Under the FA 2003,

Tier 1: Offenc

es with

mens rea

)

subjective standard

(

Section

14(1)

13(1)

Penalty:

Individual

–

1000

enalty units/2 years

imprisonment

Corporation

–

penalty units

5000

Tier 3: Offenc

es without

mens rea

)

strict liability

(

Section

, 17(2),

16(2)

Penalty:

Ind

ividual

–

500

penalty units for offenc

es in

16(2)

17(2)

and 400 p

enalty unit

s for offenc

es in

17(2)

Corpo

ration

–

2500

penalty units for offenc

es in

16(2)

& 1

and 2000 penalty units for offenc

7(2)

es in

17(2)

Tier 2: Offenc

es with

mens rea

)

objective standard

(

Section

13(2), 14(12)

Penalty:

Individual

–

750

penalty units

Corporation

penalty units

3750

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

107

Tier 1 offence explicitly requires the prosecution to prove the defendant’s knowledge to be able

to punish him or her. The requirement to prove the defendant’s state of mind indicates that the

offences under Tier 3 category are considered as serious offences. This has been confirmed by

the title of Division 1 of the FA 2003- ‘Serious Offences Relating to Food’. In addition, the

seriousness of the Tier 1 offence can also be seen from the severe punishments which not only

impose fines but also risk imprisonment.

Tier 2 offences

Tier 2 offences still require the proof of mens rea but only objective standard. It does not require

the prosecution to prove the subjective knowledge of the wrongdoer, but only prove that he or

she reasonably knows that the food he or she handled or sold were unsafe. The penalties

imposed for these offences are also lighter than the punishment for Tier 1 offences. The FA

2003 stipulates lighter fines and does not set out imprisonment as punishment for Tier 2

offences.

Tier 3 offences

Lastly, Tier 3 offences totally relies on the physical elements and do not require mens rea to

criminally punish a wrongdoer. As long as the actus reus is proven, it is sufficient to convict

the defendant. However, it must be found out whether a law really does not require the proof

of mens rea. The High Court of Australia in the He Kaw Teh case set out three points that must

be considered in knowing if the sections of the statute have created the offence that set out

relaxation of mens rea.38

First, the words used in the creating the offence section can imply whether or not there is a

mens rea proof requirement in the offence. The word ‘must not’ that simply prohibits and does

not indicate any requirements regarding the state of mind of the wrongdoer. Second, the subject

matter of the statute can indicate whether an offence regulates the relaxation of mens rea. Strict

liability strays away from the criminal law principle. Therefore, criminal law experts limit its

application to certain offences. Most of the strict liability is found in offences regulated in law

that are generally offences against public welfare offences that violates the public interest.

This includes regulatory offences such as the sale of harmful food, pollution prevention, use of

misleading trade images and traffic violations. Ali and Solaiman argue that the more serious

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

108

the offence, the more it is to require mens rea. Therefore, the Tier 3 offence is not truly criminal

or serious one. Less serious nature of the offences can be seen also in their penalties. Offences

which only constitute a violation of the general welfare are usually subject to lighter sanctions

than crimes that require proof of the mental state of the wrongdoer.

Overall, the Three- Tier mens rea model makes the FA 2003 an effective and fair system to

criminalise the food adulterators. It also has a check and balance if a court cannot impose severe

penalties if the prosecution fails to prove the defendant’s fault. Also, the Tier 3 offences can

prevent the wrongdoers from escaping punishment because they can be convicted without

proving mens rea.

5.2.2. Stipulation of Broad Actus Reus in the Food Act 2003 (NSW)

FA 2003 has effectively covered all types of food adulteration activities with its broad actus

reus set out in the offences. First, the use of the word ‘sale’ in the FA 2003 can cover all selling

activities as the Act does not provide any further definition or explanation on it. Therefore, all

sales that involve food processors, agents, suppliers, retailers, etc cannot escape from

convictions.

The word ‘sale’ is used in offences in ss 14(1) and (2) which prohibit the sale of unsafe food.

Section 8(1) of the FA 2003 defines food that is considered unsafe if ‘... at a particular time if

it would likely to cause physical harm to a person who might later consumer it, assuming: (a)

it was, after that particular time and before being consumed by the person, properly subjected

to all processes (if any) that are relevant to its reasonable intended use, and (b) nothing

happened to it after that particular time and before being consumed by the person that would

prevent its being used for its reasonable intended use, and (c) it was consumed by the person

according to its reasonable intended use.’ Therefore, no matter how and by whom the food is

produced, as long as someone becomes sick because of the food, then the food can be

considered unsafe.

The FA 2003 uses the word ‘handling’ which is defined in s 4(1) which reads ‘handling of food

including the making, manufacturing, producing, collecting, extracting, processing, storing,

transporting, delivering, preparing, treating, preserving, packing, cooking, thawing, serving or

displaying of food.’ This definition is broad enough to cover all types of food adulteration in

NSW. This actus reus can be found in ss 16 and 17 of the FA 2003 which regulates the offence

of ‘handling and sale of unsafe food’ and ‘handling of unsuitable food’ respectively. Section

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

109

16(1) and 17(1) regulate food handlers, while ss 16(2) and 17(2) prohibit the sale of unsafe and

unsuitable food, respectively. Therefore, the two actus reus elements regulated in these two

sections can broadly cover all food adulteration acts.

Section 9(1) of the FA 2003 defines unsuitable food as ‘food which (a) is damaged, deteriorated

or perished to an extent that affects its reasonable intended use, or (b) contains any damaged,

deteriorated or perished substance that affects its reasonable intended use, or (c) is the product

of a diseased animal, or an animal that has died otherwise than by slaughter, and has not been

declared by or under another Act to be safe for human consumption, or (d) contains a biological

or chemical agent, or other matter or substance, that is foreign to the nature of the food.’ As

explained in Chapter 1 of this thesis, food adulteration is carried out in the ways regulated in s

9(1). Therefore, the present study finds that these definitions are quite broad and covers all

kinds of food adulteration.

Furthermore, the FA 2003 also regulates offences related to the compliance of ANZFSC

through s 21 of the Act. Section 21(1) reads ‘a person must comply with any requirement

imposed on the person by a provision of the Food Standards Code in relation to the conduct of

a food business or to food intended for sale or food for sale.’ In this case, a person is violating

the law if he or she violates the provisions of ANZFSC, thus the actus reus in these offences is

quite broad.

5.2.3. Adequate Penalties

Besides adopting escalating penalties based on the defendant’s mens rea, the penalties set out

under the FA 2003 may also provide a deterrence effect. For example, the FA 2003 stipulates

that the NSW Food Authority (NSWFA) can disclose the list of food business that have

breached or are alleged to have breached FA 2003. The provisions can be found in s 133 of the

FA 2003. This list is called ‘Name and Shame’ register. The NSWFA maintains two lists of

‘Name and Shame’ registers, namely the Register of Penalty Notices and Register of Offences

(Prosecutions) which are updated regularly.

NSW was the first State in Australia to launch a Name and Shame register in its official website

in 2008. The aims of the Name and Shame register are to provide the community with

accessible information about the business that have failed to meet food safety standards and to

give the consumers the power of choice. The Name and Shame register has quickly became the

favoured tool of consumers and companies in finding who to avoid purchasing from or doing

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

110

business with. The NSWFA Annual Report 2018-2019 shows there are more than 14 million

hits on the site since it launched in 2008.

The Name and Shame register has created a system to make food business do more effort to

meet the food safety requirements and avoid being published on the list. If consumers continue

paying attention to the register and avoiding the wrongful acts of the food businesses, then

companies will eventually make bigger effort to keep their business name out of the spotlight.

In this way, the Name and Shame register maintained by NSWFA combines an educative role

for food producers, sellers, and consumers.

5.2.4. Limited Due Diligence Defence

FA 2003 provides a defence for a person who committed to food adulteration offences. Section

26(1) of the FA 2003 stipulates that ‘…it is a defence if it is proved that the person took all

reasonable precautions and exercised all due diligence to prevent the commission of the offence

by the person or by another person under the person’s control.’ Meanwhile, s 26(2) specifies

the details where a person can satisfy the requirements by showing:

‘(a) that the commission of the offence was due to:

(i) an act or default of another person, or

(ii) reliance on information supplied by another person, and

(b) that:

(i) the person carried out all such checks of the food concerned as were reasonable

in all the circumstances, or

(ii) it was reasonable in all the circumstances to rely on checks carried out by the

person who supplied the food concerned to the person, and (c) that the person

did not import the food into this State from another country, and (d) in the case

of an offence involving the sale of food, that:

(i) the person sold the food in the same condition as when the person purchased

it, or

(ii) the person sold the food in a different condition to that in which the person

purchased it, but that the difference did not result in any contravention of this Act

or the regulations.’

Section 26(3) of the FA 2003 excludes employees, agents of the defendant, and director from

the definition of ‘another person’ in s 26(1). However, individuals can also be held liable as

discussed shortly below. Therefore, a food adulterator cannot escape conviction by blaming his

or her employee, agents of defendant, and director.

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

111

Criminal Liability of Individual, Corporation, and Government for Food Adulteration

Individuals, including those who work in a corporation, are criminally liable for food

adulteration offences. It is impossible to punish a corporation without punishing the individuals

in it (producers, employees, agents), as corporations are run by individuals. Corporations can

also be criminally responsible under vicarious criminal liability. Vicarious liability is the legal

responsibility of one person for the wrongful conduct of another. There are two requirements

that must be met to criminalise a corporate entity, (i) there is work relationship; and (ii) the

action is still within the scope of work. Regarding the criminal liability of the public official,

as discussed in Section 1.6 of the thesis, government plays a role as regulator to ensure safe

food for the people. Therefore, if the government fails to perform their duties, they must be

responsible for it.

FA 2003 recognises not only individuals, but also corporations and governments as subjects

who can be criminally responsible for food adulteration offences. The FA 2003 regulates both

individual and corporations in the food adulteration offences by using the words ‘a person’. It

can be seen in the provisions stipulating the penalties. For example, s 13(1) of the Act set out

maximum penalty of 1000 penalty units (AUD110,000) or imprisonment for two years for

individuals, and 5000 penalty units (AUD550,000) in the case of a corporation. In addition, s

122 of the Act articulates that director or every person related to a management of the

corporation is criminally liable for any offence committed by the corporation.

The FA 2003 defines the government as a ‘protected person’, to exclude government as a

responsible party to pay for compensation where claim is made by consumers in relation to

selling, handling, and consumption of food (civil liability). This exclusion is clearly articulated

in s 134(1) of the FA 2003 which states that ‘Any matter or thing done or omitted to be done

by an enforcement agency, an advisory committee, or a protected person does not, if the matter

or thing was done or omitted in good faith for the purpose of executing any provision of this

Act or any other law, subject a protected person personally to any action, liability, claim or

demand.’ Further, according to the Act, a ‘protected person’ is a minister, member and staff of

the NSWFA, authorised officer, person acting under the direction of NSWFA, member of an

advisory committee, and person employed by the Crown. While for the criminal liability, the

FA 2003 does not mention or exclude government to criminally responsible for food

adulteration.

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

112

The discussion above has investigated the criminal liability system for food adulteration in

NSW. The analysis on food adulteration offences, mens rea structure, broadness of actus reus,

and adequacy of penalties has shown that the criminal liability system for food adulteration in

NSW is effective to make the wrongdoers criminally liable.

The section below analyses the criminal liability for food adulteration in Indonesia. The

discussion aims to investigate shortcomings and issues in the provisions regarding mens rea,

actus reus, penalties, defence, and persons liable for food adulteration offences.

5.3. Food Safety Offences in Indonesia

In Indonesia, criminal liability for food adulteration actors is regulated in three statutes, namely

the Indonesian Criminal Code, the Food Act 18/2012, and the Consumer Protection Act 8/1999

(CPA 8/1999). The sub-sections below describe the arrangements regarding actus reus, mens

rea, penalties, defence for perpetrators of food adulteration, and persons liable under the three

statutes.

5.3.1. Indonesian Criminal Code

There are several provisions in the Indonesian Criminal Code that stipulate food adulteration

offences, namely ss 204(1); 205(1); 386(1); and 501(1). Section 204(1) of the Code reads

‘Whoever sells, offers, hand over or distributes goods which he or she knows to endanger the

life or health of people, can be subjected to a maximum imprisonment of fifteen years.’ While

s 205(1) stipulates that ‘Whoever due to his or her negligence causing unsafe food to be sold,

hand over, or distributed is subjected to a maximum nine years of imprisonment, or six months’

detention, or maximum fines of 4500 rupiahs [approximately AUD 50 cents].’

The two offences above have the same actus reus, namely selling, offering, delivering, or

distributing. There is no section that further defines or limits these actus reus. Therefore, the

present research finds these actus reus are quite broad to cover all hazardous food handling

activities. In addition, the words ‘hand over’ in this offence indicates that a person can be

convicted for an act that is not conducted only for economic reasons, but the transfer of

dangerous food can also fall within the scope of offence in these two sections.

The difference between the two offences is the mens rea of the defendant. Section 204(1) uses

the phrase ‘which he or she knows’ which indicates the defendant’s bad intentions. Meanwhile,

s 205(1) uses the phrase ‘due to his or her negligence’ which means that the defendant did not

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

113

take the precautionary measures or exercise due care and diligence or the allegations he or she

should have made. There are two types of negligence, namely ‘conscious negligence’ (bewuste

schuld) and ‘unconscious negligence’ (onbewuste schuld).

‘Conscious negligence’ means that the defendant can imagine or predict the possible

consequences of his or her actions, but he or she believes and hopes that the consequences will

not occur and takes preventive measures so that the unwanted consequences do not occur.

While ‘unconscious negligence’ means the defendant cannot foresee the possibility of a

consequence for his or her actions, even though he or she should be able to predict it.

Negligence that can be punished is only negligence with a very large degree of carelessness.

Negligence of a low degree cannot be punished. Theoretically, the difference between intention

and ‘conscious negligence’ is that in intention, the defendant is considered to have agreed to

the possible consequences. Whereas in ‘conscious negligence’, the defendant does not agree

with the possible consequences, but he or she continues to carry out the actions that may cause

the consequences because he or she feels confident that the consequences will not occur

because he or she has taken preventive measures.

The difference in mens rea in the two sections also distinguishes the penalties for the two

offences. For a defendant who is proven to have committed offences as stipulated in s 204(1),

he or she can be subjected to a maximum imprisonment of fifteen years. If in actus reus and

negligence of the defendant is proven, then a maximum imprisonment of nine months or a

maximum imprisonment of six months or a maximum fine of four thousand five hundred

rupiahs (approximately AUD 50 cents) can be imposed.

In addition, the Indonesian Criminal Code also specifically regulates food adulteration. Section

386(1) which reads ‘Anyone who sells, offers or delivers food, drink or medicine which he

knows to be counterfeited, and conceals it, is punishable by a maximum imprisonment of four

years.’ Actus reus in this offence is selling, offering and handing of adulterated food.

Adulterated food in this statute is defined as food or drink that the value or benefit is reduced

because it has been mixed with another substance. For example, honey that is faked by mixing

artificial sweeteners, or milk that is mixed with water so that its nutritional quality decreases.

The expression ‘which he or she knows’ indicates that this offence requires the court to prove

the defendant’s guilt to be proven by reference to his or her knowledge of the offence. Once

the actus reus and mens rea of the defendant are proven, he or she can be sentenced to a

maximum imprisonment of four years.

Further offences surrounding food adulteration offence can also be found in s 50(1) of the

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

114

Indonesian Criminal Code. The provision reads ‘whoever sells, offers, delivers, shares or owns

supplies for sale or distribution, falsified or spoiled food or drink, or milk from cattle that are

sick or which may interfere with health, shall be punished by a maximum fine of three hundred

and seventy-five rupiahs [approximately AUD 4 cents].’ Actus reus in this offence is to sell,

offer, hand over, distribute or have a supply of fake, rotten, or derived food from sick cattle for

sale or distribution. As for the requirements for mens rea, this does not explicitly mention the

requirement for proving mens rea. In addition, the penalty for offences in s 501(1) is also lower

than the offences stipulated in the sections above. The sentence does not involve imprisonment.

Based on the Three-Tier Model applied in the FA 2003 in NSW, the offence in section 501(1)

of the Indonesian Criminal Code falls into Tier 3 offence (strict liability). However, the

Indonesian Criminal Code does not recognise relaxation of mens rea. The Indonesian Criminal

Code still puts forward the principle of ‘no crime without fault’ as a fundamental principle in

criminal law. This principle is not explicitly articulated in the Indonesian Criminal Code.

However, it lives in the society and has been recognised by them for a long time.

In addition, the non-recognition of corporations as subjects of criminal law in the Indonesian

Criminal Code can confirm that strict liability is not recognised in this statute. The drafters of

the Indonesian Criminal Code assume that only individuals are criminally accountable,

because only humans have mind. In the Indonesian Criminal Code, a state of mind is an

important element to criminalise a certain conduct. This can also be seen from the penalties set

out in the statute. The Indonesian Criminal Code always involves imprisonment, which is a

physical punishment where only humans can be subject of it.

Overall, the regulation of food adulteration offences in the Indonesian Criminal Code consists

of two tiers of mens rea, namely subjective and objective mens rea. The actus reus which is

regulated in the provisions in the Indonesian Criminal Code includes activities such as selling,

offering, delivering, distributing or owning supplies for sale or distribution. The Indonesian

Criminal Code does not stipulate the provision on unsafe food producing. In addition, the

statute also only recognises individuals as legal subjects who can be held responsible for food

adulteration offences. Actus reus, relaxation of mens rea, and persons liable which are not

regulated by the Indonesian Criminal Code have been specifically accommodated in other

laws. In the context of food safety, these laws are the Food Act 18/2012 and CPA 8/1999 that

are analysed in the sections below respectively.

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

115

5.3.2. Food Act 18/2012

The Food Act 18/2012 stipulates food adulteration in five sections, namely ss 71(5), 136, 90(1),

and 86(2). To have an organised discussion, those sections are analysed based on their actus

reus.

a. Sections 75(1) and 136 of the Food Act 18/2012

Section 75(1) of the Food Act 18/2012 reads ‘everyone who produces food for sale is prohibited

from using: (a) food additives that exceed the maximum limit; and/or (b) materials that are

prohibited from being used as food additives.’ While s 136 of the Act regulates the same actus

reus, namely producing food with excessive food additives and/or prohibited substances. In s

75(1), there is no indication that proof of mens rea is required as the section simply prohibits

the act. In s 136, uses the word ‘intentionally’ that shows the defendant’s state of mind. It

indicates that the proof of the mental state is required to convict the defendant.

It is appreciable that the penalties set out for the two offences are differentiated. For offences

in s 75(1) without mens rea, the penalties set in the Act is considered light (administrative

sanctions), namely fine; temporary cessation of production and sale; food withdrawals;

compensation; and or license revocation as stipulated in s 76(2) of the Act. As for offence with

subjective mens rea in s 136 the penalty is heavier and involves imprisonment, namely a

maximum imprisonment of 5 years or a maximum fine of 10 billion rupiahs (approximately

AUD$ 1000,000).

However, in practice, the prosecutions do not acknowledge the distinction of mens rea

requirements stipulated in the offences set out in ss 75(1) and 136. In Indonesia, generally, it is

found that court decisions for food adulteration cases that involve the use of prohibited

materials punish the defendant with the two sections at the same time for single offence. For

example, the decision number 195/Pid.Sus/2019/PN Grt, explains that the defendant is proven

to intentionally commits to the offence, but he was convicted using two different sections that

regulates different requirements to prove mens rea (ss 75(1) and 136).

b. Section 90(1) of the Food Act 18/2012

Section 90(1) reads ‘everyone is prohibited from distributing contaminated food.’ The actus

reus in this offence is to distribute food. The Act in s 1 (28) defines food distribution as any

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

116

activity or series of activities in the context of distributing food to the public, whether traded

or not.’ The present study finds this definition quite broad, covering all food transfer activities,

including food sales, and supporting activities such as food storage, food display, food

distribution, etc.

This section simply prohibits the distribution of contaminated food without requiring the proof

of mens rea. Therefore, if a person is proven to commit the actus reus, he or she can be

convicted with administrative sanctions as stipulated in s 90(1) of the Act. Those administrative

sanctions are fine; temporary cessation of production and sale; food withdrawals;

compensation; and or license revocation.

The Food Act 18/2012 defines contaminated food as ‘(a) food that contains toxic, dangerous or

hazardous materials that can endanger human health or life; (b) contains contamination that

exceeds the maximum limit specified; (c) contains materials that are prohibited from being

used in food production activities or processes; (d) contains material that is dirty, rotten, rancid,

decomposed, or contains plant or animal material that is diseased or derived from carrion; (e)

produced in a prohibited manner; and/or (f) has expired. This study finds that the definition of

contaminated food given by s 90(2) is broad enough to cover how food is adulterated in

Indonesia. As discussed in Chapter 1 of the thesis, in Indonesia, food is adulterated using

prohibited substances, such as chemicals (for example formalin and borax). In addition, food

business actors in Indonesia mostly carry out food adulteration by adding ingredients that are

damaged or derived from carcasses.

c. Section 86(2) of The Food Act 18/2012

Section 86(2) reads ‘Everyone who produces and sell food should meet the food safety

standards and quality’ If someone violates this section, then he or she may be subject to

administrative sanctions in the form of fines; temporary cessation of activities, production,

and/or distribution; Food withdrawal by producers; compensation; and/or revocation of

business license. Based on the use of language, this offence does not require the prosecution to

prove the defendant’s mens rea. If the actus reus is proven, the wrongdoer can be convicted

with the above-mentioned administrative sanctions.

The Food Act 18/2012 in s 1(6) defines food production as ‘an activity or process of producing,

preparing, processing, making, preserving, packaging, repackaging, and/or changing the form

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

117

of Food.’ The present study finds that this definition can cover all food adulteration activities.

For example, in Indonesia, many business actors buy food in large quantities to resell in small

packages. Another example is business actors who process fresh food products such as fruit,

seafood, pickles, meat into canned food. The Act defines ‘food trade’ as any activity or series

of activities which are economically motivated.’65 This definition is broad enough to cover all

food adulteration activities in Indonesia.

It is clearly articulated in the section that food business in Indonesia must meet the food safety

requirements that have been enacted. However, the analysis in Chapter 2 has identified several

issues in the food safety regulations. Those issues are that food safety standards and

requirements in Indonesia are scattered in various regulatory titles and they are not easily

accessed online. In addition, the lists of the prohibited substances are not updated regularly.

Issues related to food safety regulations and standards have been discussed in Chapter 2 of the

thesis.

Overall, the offences under the Food Act 18/2012 do not cover all the levels of mens rea. The

actus reus in food adulteration offences regulated in Food Act 18/2012 is broad enough to cover

all food adulteration activities. Apart from individuals, the Food Act 18/2012 also regulates

corporations as persons liable for food adulteration offences. In its provisions, the Act uses the

phrase ‘everyone’ which is then further defined by the act in s 1 (38) as an individual or

corporation. Also, the Food Act 18/2012 provides the penalties for individuals and corporations

separately. For offences regulated in s 136 of the Act, in addition to imprisonment and fines for

the corporation’s manager, a criminal penalty can be imposed on corporations in the form of a

fine that is three times the amount of the fine for individuals. In addition, corporations may be

subject to additional penalties in the form of revocation of certain rights. However, for offences

in ss 75(1), 90(1), and 86(2) there is no separate penalty setting for corporations proven to have

committed food adulteration offences.

5.3.3. Consumer Protection Act 8/1999

Offences in CPA 8/1999 relating to food adulteration are regulated in ss 8(1a) and 8(3) of the

Act. Section 8(a) reads ‘business actors are prohibited from producing and/or trading goods

and/or services which: do not meet or do not comply with the required standards and provisions

of laws and regulations.’ Section 8(3) reads ‘business actors are prohibited to trade damaged,

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

118

defective or used and contaminated pharmaceutical and food, with or without providing

complete and correct information.’

Actus reus in the offence in s 8(1a) is ‘producing’ and ‘trading’. While actus reus for offence

in s 8(3) of the Act is ‘trading’. There is no further explanation in CPA 8/1999 which defines

the activities of producing and trading, so the actus reus in these two offences is broad enough

to accommodate food adulteration acts.

The offences in the two sections do not explicitly require the proof of mens rea, so referring to

the Three-Tier model, the offences are included in Tier 3. However, the penalties imposed for

these two offences are quite heavy, namely imprisonment for a maximum of 5 (five) years or a

maximum fine of two billion rupiahs (approximately AUD 2000,000). Under the Three-Tier

model, penalties involving imprisonment are penalties for Tier 1 offences that are considered

serious offences.

Regarding persons liable for food adulteration, CPA 8/1999 uses the phrase ‘business actor’

which by CPA 8/1999 is defined as

‘any individual or business entity, whether in the form of a legal entity or not a legal

entity established and domiciled or conducting activities in the jurisdiction of the

Republic of Indonesia, either individually or jointly through an agreement to carry out

business activities in various economic fields.’

Therefore, everyone, both individuals and corporations, can be held criminally liable if they

commit offences regulated in this statute.

The above analysis on food adulteration offences set out in the ICC (?), Food Act 18/2012, and

CPA 8/1999 shows that the three statutes do not cover all the mental state of defendants. Based

on the analysis of FA 2003 in NSW, the present thesis suggests that the statutes governing food

adulteration offences in Indonesia to adopt the structure of mens rea contained in the FA 2003.

The application of Three-Tier model of mens rea will create checks and balances, as well as

making it easier for courts to determine penalties for wrongdoers.

5.4. Issues Concerned regarding the Food Safety Offences in Indonesia

Apart from the issues concerned in the requirement on the mens rea, the discussion below

analyses further shortcomings in the criminal liability for food adulteration set out in the ICC,

Food Act 18/2012, and CPA 8/1999. The discussion also provides some recommendations to

improve the effectiveness of criminal liability for food adulteration in Indonesia in light of the

criminal liability system for food adulteration under the FA 2003 NSW.

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

119

5.4.1. The Inefficient Words and Phrases for Actus Reus

Basically, actus reus in food adulteration offences regulated under the three statutes above has

covered all activities related to food adulteration. However, to make it easier for the

stakeholders of the statutes (consumers, business actors, law enforcers), the choice of language

for actus reus can be simplified so that it becomes more efficient. The three laws above use

several words to define actus reus, including production, distribute, trade, sell, adulterated

food, contaminated food, food produced with excessive or prohibited additives. To make it

more effective, while helping stakeholders understand better, this thesis suggests the use of

handling of unsafe food, sale of unsafe food, handling of unsuitable food, and sale of unsuitable

food as used in the FA 2003.

5.4.2. Inadequate Penalties

The penalties for offences set out in the three statutes above are considered enough to provide

deterrence for the wrongdoers. However, in practice, the prosecution often impose light

sanctions compared to the severity of their wrongful acts. To increase the effectiveness of the

penalties, food safety regulation in Indonesia requires a new strategy- namely with conducting

public exposure. Public exposure is considered an effective tool to create deterrence effect the

wrongdoers. In Indonesia, there is a website owned by the National Agency for Drug and Food

Control (NADFC) that contains a list of food products whose licenses have been cancelled.

Food products are cancelled for only two reasons, namely due to discrepancies in the data at

the time the data was registered and the conditions under supervision. The second reason is that

the selling permit is revoked at the request of the entrepreneur. Meanwhile, the list of the food

premises that violate the law is not available on the NADFC website. In fact, this information

can be useful for consumers in making their choices.

To overcome this loophole and shortcomings, NADFC can adopt the Name and Shame registers

own by the NSWFA to create deterrent effect for the food adulterators. NADFC can follow

NSWFA to publish the relevant information that may be useful for the public. The FA 200370

sets out the details of the information contained in the register, such as, the name of the person;

address; trade name; name of the chief executive officer and any director of the company (if

the person is a company); a description of the nature and circumstances of the offence, the

decision of the court, the penalty imposed and any forfeiture incurred; the enforcement agency;

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

120

other information related to matters connected regarding food safety or other interests of

consumers.

5.4.3. Corporation is not Consistently Regulated as Persons Liable for Food Adulteration

In Indonesia, corporations as subjects of criminal law are specifically recognised in the statutes

that regulate specific matters outside the Indonesian Criminal Code. This is because the

Indonesian Criminal Code still adheres to the principle of societas delinquere non potest.. In

fact, many countries have expanded the subject of criminal law by adding corporations to their

statutory provisions. The legislators include corporations as subjects of criminal law because

corporations have an important role to play in almost every respect of human life..

The corporation’s role as a non-state actor, national, or transnational corporation (MNCs) in

this globalisation era possesses a strategic position, not only economically, but also

politically.75

Corporate crime is a complex crime and has a commonly called as ‘white collar crime’ or ‘crime

by powerful’ as it is usually conducted by a person who is financially and politically powerful.

Recognition of corporations as subjects of criminal law is motivated by the different history

and experiences in each country, including Indonesia. However, there is a common view that

the development of industrialisation and the economy has encouraged the idea that the subject

of criminal law is no longer limited to natural persons (natuurlijke persoon) but also includes

corporations, because corporations can also commit certain criminal acts. In Indonesia, this

change can be seen in specific laws outside the Indonesian Criminal Code. As for several laws

that have accommodated the position of corporations as subjects of criminal law, namely

Prevention and Eradication of the Crime of Money Laundering Act 8/2010; Forestry Act

41/1999; and the Management and Environmental Protection Act 32/2009. In the context of

food safety, these laws are Food Act 18/2012 and CPA 8/1999 that have been discussed in

Section 5.4.

However, the Food Act 18/2012 and CPA 8/1999 do not consistently regulate corporations. As

discussed in Section 5.4 of this chapter, the Food Act 18/2012 has expanded the legal subject

of criminal acts by including corporations, but not all provisions governing food adulteration

offences stipulate specific sanctions for corporations. In addition, the CPA 8/1999 also does not

regulate separate sanctions for corporations. The two pieces of legislation do not contain

provisions that regulate if a corporation (not its management) fails to pay a criminal fine. This

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

121

can cause problems, because the general provisions regarding the penalty of unpaid fines or the

criminal rules in lieu of fines in the Indonesian Criminal Code only apply to individuals.

Therefore, this study suggests that the Food Act 18/2012 and CPA 8/1999 should be amended

and regulate corporations consistently. In addition, changes to the Indonesian Criminal Code

must also be made. In fact, since 1976, the Netherlands has amended its Dutch Criminal Code

(Wetboek van Stafrecht/ WvS) and include corporation as subject of criminal law. Fortunately,

the draft of the new Indonesian Criminal Code has accommodated the position of corporations

as subjects of criminal law. This can be seen from the provisions of s 48 of the draft that

articulates ‘Corporations are the subject of criminal acts’.

5.5. Summary and Conclusions

The current chapter has discussed the criminal liability system for food adulteration,

particularly its offences and elements (actus reus and mens rea). The traditional criminal law

principle requires the proof of mens rea. However, due to the development in the society, mens

rea is not always possible to prove. Therefore, some legal scholars suggested that the relaxation

of mens rea requirement is need.

This chapter has analysed the FA 2003 of NSW as better articulated compared to their

Indonesian counterparts, with more useful statutory provisions regulating food adulteration

offences. The FA 2003 adheres to a Three- Tier model of offences where it defines the

requirements of mens rea and severity of penalties based on the culpability of the defendant.

Based on the Three- Tier model, the offences in the FA 2003 are categorised into three different

standards, namely Tier 1 offences (offences with subjective mens rea); Tier 2 (offences with

objective mens rea); and Tier 3 (offences without mens rea). These offence categories define

the penalties for the wrongdoers. Tier 1 offences have the highest penalty, followed by Tier 2

offences which penalties are higher than Tier 3 offences. The Three- Tier model of offences

has become an effective and fair criminalisation for wrongdoers as it created check and

balances.

In contrast, the Indonesian statutes that regulate food adulteration offences do not embrace an

organised structured of mens rea and penalties. The analysis in the present chapter has shown

that there is no single offence in the Food Act 18/2012 and CPA 8/1999 satisfies the criteria

Chapter 5- Criminal Liability for Food Adulteration and Food Contamination in Indonesia

122

for Tier offences (offences with objective mens rea). This study suggests that the Three- Tier

model of offences in NSW may be beneficial for Indonesia to improve the effectiveness of

criminal liability provisions for food adulteration. In addition, the Name and Shame register

owned by the NSWFA has proven to be effective in providing deterrent effect for the

wrongdoers.

The actus reus of food adulteration offences in Indonesia are broad enough to cover all the

activities of food adulteration. However, to help the stakeholders of the statutes understand

better, the current chapter suggests that Indonesia to adopt the efficient choice of language for

actus reus as in FA 2003.

Regarding the persons liable for food adulteration offences, it is appreciable that in the Food

Act 18/2012 and CPA 8/1999 have separately prescribed the penalties for corporations. The

present study suggests that the Indonesian Criminal Code to be amended immediately to

include body corporate as person liable for criminal liability.

Finally, these recommendations are proposed to improve the effectiveness of the criminal

liability system for food adulteration in Indonesia. Hopefully, food adulteration cases can be

reduced by setting an effective, strong, and more useful criminal liability for the food

adulterators in Indonesia.

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

123

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

6.1. Introduction

The present chapter examines the administrative enforcement framework for food safety in

Indonesia. The regulatory bodies, especially NADFC that relates to food safety regulation in

Indonesia, along with their functions, powers, and compositions, have been discussed in

Chapter 3 of this thesis.

This chapter analyses the administrative enforcement steps that are carried out by NADFC,

namely written warnings, fines, temporary shutdowns of food recall and removal, and the

revocation of business licences. The enforcement steps that are imposed by NADFC are

analysed to identify weaknesses in the administrative enforcement for food safety in Indonesia.

Based on this analysis, the present chapter proposes some possible solutions to improve the

effectiveness of administrative enforcement by NADFC.

In addition, this chapter also analyses some loopholes that contribute to failures in the

administrative framework for food safety in Indonesia. These issues, identified in Chapter 3,

are inadequate NADFC personnel, lack of coordination between food safety administrative

bodies, lack of testing laboratories, as well as lack of community knowledge and awareness

towards food safety.

The discussion of the issues in the administrative bodies for food safety in Indonesia is

followed with analysis regarding the enforcement issues of the civil liability system in

Indonesia, identified in Chapter 4 of this thesis. Therefore, this chapter involves the discussion

on the administrative enforcement framework of the Consumer Protection Act 8/1999. The

analysis found some issues with enforcement bodies such as the Consumer Dispute Resolution

Agency (CDRA) and the Non-Governmental Organisation for Consumer Protection

(NGOCP).

This chapter analyses those issues to find some possible solutions to improve the administrative

enforcement framework by looking into other jurisdictions, especially New South Wales

(NSW). In addition, the present chapter also provides suggestions obtained from the discussion

on NSW’s administrative framework. The discussion in this chapter analyses the strategies

(including coordination between administrative bodies) in food safety regulation in NSW. The

discussion starts with an introduction in section 6.1 of the chapter. Section 6.2 explains the

enforcement bodies for food safety in Indonesia, while section 6.3 discusses the administrative

enforcement framework of the Food Act 18/2012. Section 6.4 analyses the administrative

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

Ibid

124

enforcement of the Consumer Protection Act 8/1999. Finally, section 6.5 summarises and

concludes the chapter.

6.2. Food Safety Enforcement Bodies

As has been described in Chapter 3, to carry out its functions, NADFC is equipped with a

Technical Implementation Unit (TIU). NADFC TIU is an independent work unit that reports

to the Head of NADFC and carries out certain technical operational tasks and certain

supporting technical tasks in the field of food and drug control.2 Regarding inspection, the

Testing Division of NADFC TIU functions to carry out inspections of food production and

distribution facilities. NADFC TIU conducts inspections by:

a. entering any place suspected of being used in the activities or processes of food

production, storage, transportation, and trade to examine and collect food samples and

all things suspected;

b. stopping, inspecting, and preventing every means of transportation that is suspected of

being used in food transportation as well as taking and testing food samples;

c. opening and examining food packaging;

d. ordering to disclose business certificates and other similar documents; and

e. conducting food testing in laboratories.5

In regulating food safety, NADFC TIU is coordinated with other administrative bodies

according to their respective functions. As discussed in previous chapters, the power for food

regulation in Indonesia is divided into seven types of food. Therefore, several authorities also

share the administrative enforcement. The table below shows the sharing task for

administrative enforcement for food adulteration in Indonesia based on the Government

Regulation 86/2019 on Food Safety (GR 86/2019).

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

Ibid

125

Table 6.1: Sharing Task among Food Safety Administrative Bodies

Type of Food

Inspection

Administrative Enforcement

Fresh Food (plant product)

MoA, LG

Fresh Food (animal product)

MoA, MoF, LG

Fresh Food (fishery product)

MoF, LG

Processed Food

NADFC

NADFC13

Specific Processed Food and

Home-Industry

NADFC, LG15

LG16

Ready-to-serve Food

MoH, NADFC, LG

Ready-to-serve Food in

Airports, Harbor, and Cross

Border Checkpoints

MoH, NADFC, LG

MoH20

Notes: MoA

: Ministry of Agriculture

MoF

: Ministry of Fisheries and Marine Affairs

MoH

: Ministry of Health

NADFC

: National Agency for Drug and Food Control

: Local Government

6.3. Administrative Enforcement Framework of the Food Act 18/2012

If, based on the test results, the business actor is proven to be producing or trading adulterated

food, then the business actor may be subject to administrative sanctions in the form of written

warning; fine; temporary suspension of food production and sales activities; withdrawal of

food from the market by producers; and revocation of business licenses by NADFC.

Written Warning

In general, written warning is given if the violation is deemed mild and can still be tolerated;

for instance, the use of food additives exceeding the maximum levels24 and the use of nonfood-

grade packaging. Written warnings usually contain orders to withdraw, improve, and/or

destroy.

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

Ibid

126

Fine

The amount of the fine is determined based on violation criteria and business scale. Violations

are divided into minor, moderate, and severe violations. The business is divided into large,

medium, small and micro businesses. Administrative fines are based on violation criteria and

business scale according Government Regulation 86/2019 on Food Safety:29

Table 6.2: Administrative Sanctions under the Government Regulation 86/2019 on Food

Safety

Violation

Criteria

Business Scale

Micro

Small

Medium

Large

Minor

AUD$200

AUD$ 500

AUD$1000

AUD$2000

Moderate

AUD$500

AUD$1000

AUD$2000

AUD$5000

Severe

AUD$1000

AUD$2000

AUD$5000

AUD$10,000

Note: Fines are imposed in Indonesian currency, the amount of money in the above table are

converted into Australian dollars as approximate amounts Temporary Shutdown of Food

Production and Selling

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

127

In addition to the temporary shutdown of production, temporary import cuts can also be

invoked/enforced. If the suspension is ignored, the administrative sanction will be escalated to

food recall.

Food Recall and Removal

Food recall is carried out if there is food that does not meet food safety, quality, and nutrition

requirements, such as food labeling requirements and/or import of processed food into

Indonesian territory.

The Food Recall process is carried out through the following stages:

1. Issuance of recall warrants by NADFC that are addressed to food producers or food

importers after the assessment

2. Issuance of circulars throughout Indonesia, including instructing Technical

Implementation Unit (TIU) to coordinate with local government

3. Issuance of public warnings

4. Execution of food recall

5. Handling of recalled food products

6. Monitoring and evaluation of recall results. If the food recall process has been

effectively carried out, a Termination Recall Letter will be issued. If the food recall

process is not effective, a Food Recall Order will be issued again; and

7. Issuance of a circular concerning the termination of food recall

All food recall activities must be documented and reported by manufacturers, importers, and

food distributors to NADFC. The recall report requirement was made to ensure that

manufacturers, importers and food distributors have withdrawn all food from circulation.

Revocation of Business Licence

There are several types of revocation of food permits: revocation of processed food distribution

permit; sanitation hygiene certificate for Ready-to-Process Food; revocation of home industry

Processed Food production certificates for home industry Processed Foods; revocation of

primary certificate and veterinary control number certificate; certificate of eligibility;

certificate of application of integrated quality management program; fish processing certificate

or registration number for Fresh Food. Revocation can be done if:

(i) food hygiene requirements are not fulfilled;

(ii) it is known that the document submitted at the time of registration is a document that

is fake or forged;

(iii) processed food is not in accordance with the initial data given during food

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

128

registration;

(iv) food product advertisement is violating laws and regulations;

(v) companies commit violations in the field of food production and/or distribution;

(vi) the location of the importer is not in accordance with the data at the initial

registration.

Generally, administrative sanctions are imposed gradually, but for more severe violations, the

sanctions imposed do not have to start from the lightest. In addition, GR 86/2019 may be

subject to more than one administrative sanction for certain violations. For example, for food

adulteration, business actors who are proven to be producing or selling adulterated food for the

first time are subject to administrative sanctions in the form of fines, temporary suspension

from the production or sale of food, or food recall depending on the severity of the violation.37

If a business actor performs food adulteration for the second time, an administrative sanction

may be imposed in the form of revocation of a business license.

6.3.1. The Absence of Enforcement Guidelines

GR 86/2019 regulates the stages of administrative sanctions ranging from the lightest to the

most severe depending on the seriousness of the food safety breach. However, this regulation

does not contain further explanation to help food inspectors (NADFC) impose appropriate

sanctions. In law enforcement, food inspectors often find it difficult to determine suitable

punishment. The penalties imposed were often too light, so that it did not provide a deterrent

effect, so that business actors tend to commit these violations again. For example, in Klender

Market in East Jakarta, there are sellers who sell chicken carcasses even though they have

previously been caught in the act and sentenced to a fine. This happened because the fines

imposed were too light compared to their profit and did not deter them.

This problem can be resolved by establishing an enforcement guideline. The NSW Food

Authority provides its inspectors with an enforcement guideline that is called the NSW Food

Authority Compliance and Enforcement Policy. The Guideline was developed to promote a

consistent approach across jurisdictions for the implementation and enforcement of food

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

129

regulations and standards in Australia and New Zealand and was endorsed by all jurisdictions

in Australia and New Zealand through the Implementation Subcommittee (ISC) in November

2009. This policy summarises the NSW Food Authority’s general approach to compliance and

enforcement; explains how the Food Authority undertakes activities that reduce food safety

risks and enhance compliance with established standards for food production and labelling;

and guides decision-making to ensure that compliance actions are consistent, fair and based on

best practice.

The aims of this policy are:

i. to promote compliance with the legislative provisions of NSW food regulation

consistent with the objects of the Food Act 2003;

ii. to promote transparency to consumers and industry on how the Food Authority will

make decisions on enforcement action;

iii. to guide decision making and action by staff in the use of enforcement options; iv. to

encourage use of regulatory implements in such a way as to best achieve

organisational objectives;

v. to have a risk-based approach to compliance and enforcement activities through

adoption of a graduated and proportionate response to legislative noncompliance;

vi. to encourage use compliance and enforcement strategies in such a way as to best

achieve legislative compliance;

vii. to have a cooperative and collaborative approach with businesses or between

jurisdictions to legislative compliance, and one that does not place unnecessary impost

on food businesses in Australia; and viii. to protect consumers from inappropriate

and/or misleading trade practices.

The enforcement guideline in NSW continues to be reviewed and updated; for example, the

guideline was finalised and published in 2009, while Appendix 1 (the enforcement toolbox)

was reviewed. It is intended that the scope of the revised documentation will be broadened to

capture both compliance and enforcement elements to reflect current approaches to the

effective implementation of food regulation.

This guideline can help the food safety inspector determine what is appropriate, including

application of multiple enforcement tools under appropriate circumstances. In addition, this

guideline can help business actors to understand what sanctions will be imposed if they violate

the rules (and if they commit these violations again), so that compliance can be improved.

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

130

Apart from NSW, for food sold online, the United Kingdom (UK) also has a special

enforcement guideline that contains guidelines for its regulation and inspection. The guideline

is called Food Sold Online–Guidance for Local Authorities published by the Food Standards

Agency. This guideline includes an explanation of the level of non-compliance; identification

of online businesses; sampling; non-compliance addressing; closing a business’s online sales

presence; referral to port authorities; consumer education; and gathering digital evidence. The

purpose of this guidance is to assist local authorities with assessing and monitoring compliance

with food laws of businesses operating online. It provides specific inspection and identification

techniques, sampling guidance and a basic understanding of the capture of digital evidence.

Enforcement guidelines for food sold online are also relevant to Indonesia, because online food

trade is one of the challenges for NADFC in conducting surveillance.47 Along with the rapid

penetration of internet users in Indonesia, the shopping trend of the community has shifted

from the offline to online. The provisions regarding food sold online have been stipulated in

the NADFC Regulation 8/2020 on Regulation of Drug and Food Sold Online, but it contains

incomplete information regarding the enforcement. For example, it only explains the online

sale surveillance through social media or other internet media.

The IAEF needs an inspection manual or guidelines where all the necessary implementation

procedures will be described, that is, details as to how all steps of administrative enforcement

measures will be executed. This study suggests that Indonesia can borrow the inspection and

enforcement strategies from NSW. The ‘NSW Food Authority Compliance and Enforcement

Policy’ and ‘Food Sold Online Guidance for Local Authorities’ established by the Food

Standards Agency in the UK can be a role model for the development of a new enforcement

policy for Indonesia.

In addition to the absence of enforcement guidelines, the administrative enforcement for food

safety in Indonesia is also hampered by several loopholes. Inadequate food inspectors, lack of

testing laboratories, lack of community knowledge and awareness towards food safety, and

lack coordination between food safety administrative bodies have contributed to

ineffectiveness of the administrative framework for food safety in Indonesia. The sub-sections

below analyse those issues and provide recommendations obtained from NSW to improve the

effectiveness of the administrative enforcement of food safety in Indonesia.

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

131

6.3.2. Inadequate Food Inspectors

As mentioned in Chapter 3, NADFC is experiencing a lack of human resources in each of its

divisions, including food inspectors. The number of NADFC personnel is insufficient

compared to the scope of regulatory duties and workload. Reports submitted by NADFC in

various cities stated that there was a shortage of human resources for food inspectors. For

example, NADFC in Semarang City has a number of inspector personnel not proportional to

its workload. NADFC’s working area in Semarang City is the entire province of Central Java,

which has a total area of about 3.3 million hectares or approximately 25.04% of the area of

Java Island and 1.7% of the total area of Indonesia. With the wide area of supervision, NADFC

Semarang City is only equipped with 35 inspectors, far from the ideal number of inspectors,

which is 81 personnel. This amount is calculated from NADFC performance, workload and

trends in the previous year.

Moreover, the challenges in conducting food control in Indonesia are quite heavy. Indonesia

has a wide area, of nearly 2 million square kilometres that consists of 16,056 islands. In

addition, the population of Indonesia is approximately 265 million, spread across 34 provinces.

Many areas in Indonesia are still remote and have difficult terrain, for example

Manokwari, Jayapura, Sofifi and Ambon.55 Due to the difficulty of access to transportation that

affects food production and distribution, there are many food safety violations in these areas,

for example the sale of expired food products. Several islands of Indonesia are adjacent to

several countries such as Malaysia and Singapore. The lack of supervision here increases the

risk of crime, such as smuggling. For example, Batam, located on the side of the world’s most

crowded international trade route, became the gateway and spearhead of the national

economyof Indonesia. The location of the region adjacent to neighbouring Malaysia and

Singapore makes Batam a very strategic place for services and trade, and smuggling. Busy

traffic at the port is used by the wrongdoers to import food products illegally.59 There are 64

illegal ports in Batam City that are the entrance to illegal food products that are not equipped

with export-import documents and customs.60

Dishonest business people in Indonesia conduct food smuggling from other countries because

usually the price is much cheaper; this is because the food product is nearing the expiration

date. For example, at the end of 2017 a man was arrested for being proven to have smuggled

imported food products worth Rp.1.1 billion (approximately AUD11,000) from Singapore

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

132

through the port of Dumai, Riau. The food products were then repackaged and given a new

expiration date to be traded in Indonesia.

With the number of food businesses, areas of supervision, geographical conditions, and

challenges in food safety inspection, NADFC needs a sufficient number of inspector personnel.

To overcome this problem of human resource shortages, of course it is necessary to add

additional inspection personnel. However, it should be noted that the quantity alone is not

enough – qualified competence in food safety inspectors is also necessary. A food inspector

must have sufficient knowledge of laws, regulations and enforcement procedures. One solution

is to issue enforcement guidelines as discussed in sub-section 6.3.1.

Apart from the above limitations, NADFC also experiences obstacles in law enforcement due

to a lack of facilities and infrastructure. The analysis of the issue concerned is given below.

6.3.3. Lack of Testing Laboratories

As mentioned initially in Chapter 3, NADFC laboratories still do not meet laboratory standards

due to limited equipment, facilities and infrastructure, testing scope, and human resources. Due

to the limited resources mentioned above, not all commodities under NADFC regulation can

be laboratory tested by the laboratories owned by NADFC.63 Although Public Service

Standards in the NADFC have been stipulated, limited resource capacity and other external

factors that cannot be fully controlled lead to delays in testing food samples. The need for a

qualified laboratory soars at certain moments. For example, in the holy month of Ramadan, the

high demand for food is often used by fraudulent business actors to reap more profits, by

conducting food adulterations.67 During Ramadan 2019, food adulteration cases increased by

53.3% compared to the previous year.

The laboratory is an important infrastructure that will support the quality of food testing. The

results of NADFC laboratory testing determine the next regulatory process, namely, the

enforcement of food adulteration laws and regulations. Therefore, infrastructure of laboratories

must be strengthened immediately. Due to government limitations in providing development

budgets for NADFC, solutions such as purchasing laboratory equipment cannot be realised

quickly.

In NSW, the government anticipates this kind of problem by regulating the involvement of

private laboratories in the implementation of the food regulation. The website of the NSWFA

has provided a list of approved chemical and microbiological laboratories along with the

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

133

approved chemical microbiological analysts. As per the list, there are at least sixteen public

and private laboratories for chemical tests and eleven microbiological laboratories available

for food testing.

Concerns about unqualified laboratories can be resolved by conducting a selection process. In

NSW, the Food Act 2003 stipulates the provisions that state that laboratories and analysts can

apply to take a part in food testing in relation to law enforcement. S 80 of the Food Act 2003

requires the listing of laboratories approved by NSW where only the approved chemical

analysts can analyse food products concerning safety concerns. In NSW, a laboratory that meets

the standards means that it has gone through an accreditation process by The National

Association of Testing Authorities (NATA). NATA is the national accreditation body for

Australia. NATA’s role is to serve the national and public interest, by ensuring that

organisations comply with relevant international and Australian standards and so is competent

to provide consistently reliable testing, calibration, measurement and inspection data to

government, industry and the wider community.

In the context of Indonesia, the National Accreditation Committee (NAC) carries out the

approval, which is a non-structural institution that is tasked with and responsible for conformity

assessment accreditation. Based on the Standardisation and Conformity Assessment Act

20/2014, NAC is under and responsible to the President through the Head of the National

Standardisation Agency for Indonesia (NSA). A list of private food laboratories that have been

accredited by NAC can be found on the NAC website.

Like in NSW, private laboratories that wish to apply for testing can submit their applications

for assessment and then will be given a decision by NADFC. This membership continues,

unless NADFC determines otherwise. As in NSW, this membership can be cancelled or

revoked if the laboratory concerned deliberately or negligently violates the rules; if NADFC

believes that the laboratory personnel have violated existing regulations; if NADFC believes

that someone responsible for, involved in the management or employed by, the laboratory has

a direct or indirect interest in any food business which, in NADFC’s opinion, may affect the

carrying out of laboratory functions under this law; at the request of the person in charge of the

laboratory; and for other reasons NADFC deems appropriate.76

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

134

In addition, to improve the effectiveness of the administrative enforcement, the following idea

can provide a solution to enhance the performance of laboratories and food inspectors by

conducting industry funding.

Industry Funding to Pay the Regulatory Cost

In Australia, there is an innovative model to earn funding for a regulator. The Australian

Securities and Investments Commission (ASIC) developed a funding model called industry

funding. It is a funding model whereby those who create the need for and benefit from ASIC’s

regulation bear the costs. Entities pay a share of the costs to regulate their subsector through

industry levies based on a range of business activity metrics.78 Starting from 1 July 2017, the

industry funding became law and ASIC recovered most of its regulatory costs from regulated

industries.

ASIC publishes its regulatory costs as part of an annual Cost Recovery Implementation

Statement (CRIS). The CRIS outlines ASIC’s forecast regulatory costs and activities by

subsector for each financial year and provides details on how ASIC allocated its costs in the

previous year. The CRIS will also provide industry with indicative levies for the following year

to help them plan. With this model, around 90% of ASICs regulatory activities is recovered in

the form of industry funding levies, the remaining 10% is recovered via fees for service.

This solution is possible to be applied to overcome NADFC funding problems such as in staff

recruitment, human resources development, and to overcome the issues of lack of facilities that

will be analysed in sub-section 6.3.4. However, to be able to implement industry funding in

Indonesia, several things must be adjusted. In Indonesia, the processing business (including the

food business) is divided into four groups, namely large business (100 workers or more),

medium business (20–99 workers), small business (5–19 workers), and households (having 1–

4 workers). Based on this classification, in 2016, 4.737 million of the 4.41 million processing

businesses in Indonesia were small-scale industries (99.04 per cent), and the rest (42,468) are

large-scale businesses. Therefore, the business funding model cannot simply be applied to all

food business in Indonesia, especially in small and medium enterprises, which have

significantly different characteristics from large businesses in terms of their finances, expertise

and staffing capabilities. In fact, there is the term infant industry, which means an industry that

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

135

is still new and in its early stages of development and, thus, is not yet capable of competing

against established industry competitors. They are deemed worthy of protection or get

exceptions to a rule.

Therefore, small, medium and household food businesses can be exempted from this funding

obligation or get a remission to pay the levy. In Australia, the small-scale business or infant

business is not obliged to pay this levy; however, they still contribute by paying an increased

amount of their Annual Review Fee. This solution can be applied to small, medium and

household business in Indonesia, but there should not be any discrimination in the obligation

to pay for industry funding. Discriminatory behaviour must be avoided by issuing a regulation

that contains industry categories that are required to pay their contributions. In NSW, the

organisations that are required to pay a levy are those regulated by ASIC and the classification

is defined under the ASIC Supervisory Cost Recovery Levy Act 2017. This regulation also

provides a method for calculating the amount of levy. For Indonesia, the determination of the

company category can use a classification based on the International Standard Industrial

Classification of all Economic Activities (ISIC) (4th revision), which has been adapted to

conditions in Indonesia under the name Indonesian Standard Industrial Classification 2009.

Industry funding implemented by ASIC in Australia is possible to be implemented in Indonesia,

as long as it is adjusted to the circumstances and capacity of food businesses. By implementing

industry funding, it is hoped that issues related to funding that have long been a problem in

NADFC will be resolved.

Besides the issue regarding a lack of testing facilities, NADFC’s performance is also inhibited

by lack of community knowledge and awareness towards food safety. The analysis of this

issue can be found below.

6.3.4. Lack of Community Knowledge and Awareness towards Food Safety

Previously, Chapter 3 has identified issues in the dissemination of information on food safety

and its regulations to business actors and consumers. This sub-section analyses these issues to

find solutions to improve NADFC’s performance in disseminating information needed by food

businesses and consumers. The analysis is divided into two parts, namely (a) Lack of Food

Safety Knowledge and Awareness of Business Actors; and (b) Lack of Consumer Knowledge

and Awareness towards Food Safety.

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

136

a. Lack of Food Safety Knowledge and Awareness of Business Actors

It was stated in chapter 3 that NADFC had held training for business actors, but the

implementation had not shown reasonably desired results. As explained in Chapter 3, the

training held by NADFC only focused on food registration. The topic of food registration was

chosen by NADFC to be presented at every training because NADFC was trying to increase

the number of registered food products and businesses. NADFC has made a new breakthrough

by implementing online food registration (e-registration), but in practice, there are still

technical problems. E-registration still faces obstacles for food producers, especially MSMEs

in regions with inadequate human resources and technology constraints. This is one of the

reasons business actors are reluctant to register their food products. In addition, the level of

understanding of business actors towards food registration is the main determinant of the

annual performance value of NADFC. In other words, NADFCs performance is considered

successful if there is an increase in the number of business actors registering their products.

However, other training materials are not less important than food registration. As explained in

Chapter 3, many food business actors do not know that formalin is a substance that is prohibited

from being used as a food additive. For this reason, NADFC needs to enrich training materials

to be more varied and must be in accordance with the needs of business actors. For example,

in many cases it was found that business actors misused formaldehyde to be used as

a food preservative. To solve this problem, NADFC can provide training to business actors

regarding alternative food additives such as Chitosan. Chitosan can inhibit growth-damaging

microorganisms and at the same time coating the preserved product so that it occurs with

minimal interaction between the product and its environment. Chitosan has also been tested

and used to preserve various food products in Indonesia including tofu, salted fish, wet noodles,

sausages, meatballs, and fruits.91 The use of Chitosan as a food additive and preservative not

only produces durable food products but also prevents consumers from the possibility of

contracting typhus and inhibits the multiplication of human gastric cancer cells.92 In addition,

there are anthocyanin extracts of sweet potato and rosella flower extract (hibiscus sabdariffa

L) that can be used as natural dyes.

Buckley suggests that the relationship between food business and food inspectors requires time,

flexibility, and interpersonal skills to develop. Through conversations, both food business and

food inspector will understand each other’s respective approaches, priorities, and challenges.

Buckley also added that interactions between processors and inspectors will shape regulatory

outcomes and determined how written requirements were interpreted and implemented.

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

137

Apart from problems related to the lack of knowledge of business actors, problem such as

limited capital is also one of the factors causing food adulteration in Indonesia. Therefore, the

points below analyse these limitations to find some possible recommendations.

b. Limited Capital and Basic Needs of Food Business Actors

Yapp and Fairman argue that limitations on lack of money, lack of time, lack of experience,

lack of access to information, lack of support, lack of interest and lack of knowledge are the

barriers for small and medium enterprises to comply with the regulation. The impacts of these

shortcomings towards food business compliance requirements have been described in Chapter

3 of the thesis. Meanwhile, this chapter proposes that in addition to providing access to

information regarding food safety and its regulations, the government needs to ensure that

people, especially small and medium enterprises, get support to run their businesses.

Small-scale business actors who experience limited capital can be provided with basic facilities

to support the fulfillment of food safety requirements. Infrastructure investment in water

supply, storage facilities, rural electricity, or transportation may be fundamental to

improvement in food processing and handling. Government assistance is also important in

providing necessary infrastructure, certification standards, market information about standards

in importing countries, and research to improve production methods.

The Indonesian government has made several efforts to assist business actors to comply with

food safety regulations. One of these efforts is by providing funds as capital for small

businesses. For example, at the beginning of the Covid-19 pandemic, the government disbursed

22 trillion rupiahs (approximately AUD 2.2 million) to be given to 9.1 million MSMEs

throughout Indonesia. This assistance is expected to be able to reduce the burden on MSMEs

who are affected by the Covid-19 pandemic that can be used as capital or to boost the economy.

Long-established and new MSMEs are entitled to a fund of 2.4 million rupiahs (AUD240) if

they meet the requirements. Another example is the subsidy for installing water pipes for 1000

houses in 2019 in District Sijunjung. This subsidy is a program of assistance from the Ministry

of Public Works and Public Housing for the Regional Drinking Water Company in Tirta

Sanjung Buana aimed at low-income people. This assistance is in the form of installing a clean

water connection pipe into the residents’ houses, with a discount of up to 65 per cent. This

means that it is possible for the government to provide subsidies to business actors. However,

this assistance often fails to improve the quality of life of the community due to limited

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

138

knowledge and awareness of the local community. For example, laboratory test results show

that there is sulphide contamination that reaches four times the maximum limit at the

Langsur River, which is in Sukoharjo City. The party responsible for this pollution is PT Sri

Rejeki Isman or Sritex that has been polluting the river with its factory waste since 1991. This

pollution has killed the fish and caused skin disease in residents who come in direct contact

with the water from the river. In the past 20 years, residents have protested against this

pollution, but the only response was compensation from PT Sritex of 200 million rupiahs

(approximately AUD 20,000) given to 13 villages. The funds are then used by residents to build

village infrastructure such as bridges. However, until it was reported in 2019, this waste

pollution problem still occurred and there was no significant action from PT Sritex. Another

example is shown by a survey of drinking water in Yogyakarta in 2017, which, although it is a

well-off urban centre in Java Island, found that 89 per cent of water sources and 67 per cent of

household drinking water were contaminated by faecal bacteria. This was caused by open

defecation, which is the practice of people defecating outside, such as in street gutters, behind

bushes or into open bodies of water.107 Not surprisingly, it makes Indonesia the third largest

country with open defecation practices after India and Nigeria.

Moreover, only 7 per cent of wastewater in Indonesia is treated, while open defecation

contaminates sources of drinking water and spreads diseases such as cholera, diarrhoea and

dysentery. The World Health Organization (WHO) estimates that inadequate sanitation causes

432,000 diarrheal deaths annually. Frequent diarrhoea increases the risk of malnutrition among

children. In fact, safely managed sanitation is recognised as a top priority for improving health,

nutrition and productivity of people, and is an explicit target of the sixth Sustainable

Development Goal (SDG). Reaching SDG 6, therefore, requires a closer look at strategies for

reaching the poorest Indonesian children and families with better access to safely managed

water supply, sanitation and hygiene (WASH).

The United Nations International Children’s Emergency Fund (UNICEF) stated that one of the

biggest challenges with achieving safely managed sanitation is changing behaviours.112

Therefore, not only subsidies and assistance must be provided to the community, especially

business actors, but the government must also educate about resource management. In

Indonesia, the government must motivate social behaviour change through high-level advocacy

and engagement in resources, peer to peer learning to support sub-national advocacy and

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

139

through social mobilisation in marginalised communities. For example, for water resources

management, the government can carry out education and dissemination of information

regarding the importance of clean water to children in early age. Socialisation can be carried

out to students with material on health, environment, and social care. With the involvement of

the younger generation, we can be more anticipative of the problem of clean water in the future.

In addition, this socialisation must be supported with community participation and

commitment; for example, with efforts to overcome the habit of open defecation and careless

disposal of household waste.

In addition to business actors, there is a lack of knowledge and awareness towards food safety

in consumers. The issue concerned is analysed below.

c. Lack of Consumer Knowledge and Awareness towards Food Safety

Apart from business actors, consumers’ knowledge of food safety and related regulations,

including knowledge and awareness of their rights as consumers, is also very important.

Consumers take the responsibility to obtain general knowledge of food safety; to be selective

in choosing food products; to implement good food handling practices; and to form consumer

associations. However, unfortunately consumer knowledge in Indonesia about food safety is

still low. On the other hand, consumers have limited abilities in collecting and processing

information about the food they consume, so they have limitations in evaluating food and find

it difficult to avoid the risk of food products that are not of good quality and are not safe for

health.

Due to limited knowledge and ability to obtain information, consumers often assume that high

quality food must also have a high price. For the economically weak, they will choose a cheap

price that they can afford. This consumer class focuses more on affordable prices than other

considerations. They have bought food at low prices, even though the product is of low quality

and its safety is not guaranteed. Finally, consumers unconsciously consume these food products

because, for example, they have an attractive appearance at a lower price.116

NADFC has made efforts to educate the public through training, public service announcements

on television stations, radio, print media, as well as at airports, cinemas and train stations.118

However, these efforts have not been carried out consistently and evenly, so the results are not

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

140

too significant as shown by the increasing instances of injury from food adulteration and

contamination. There are still many consumers whose knowledge and awareness of food safety

is low. For example, research conducted by Rahmatunisa et al. around the Muhammadiyah

University of Purwokerto campus shows that 90 per cent of street food consumers around the

campus have a low level of knowledge, 10 per cent of consumers have moderate knowledge,

and no consumer has a high level of knowledge. The low level of food safety knowledge is

caused by the lack of information obtained about food safety, especially regarding food

additives.

NSW has a strategic program called Scores on Doors that is designed to reduce foodborne

illness in NSW by improving food safety in the retail sector through public display of food

safety inspection results. This program aims to help the public know how good local

restaurants, takeaway shops, bakeries, pub bistros and cafes are complying with NSW hygiene

and food safety requirements. Scores on Doors can also make business actors competitive and

improve consumer confidence in choosing their food.

The NSWFA Annual Report 2018–2019 claims that there is growth in the Scores on Doors

program. On 30 June 2019, there were 59 councils participating in the program, consistent with

the previous financial year. These 59 councils represent 25,065 eligible food businesses,

capturing 64% of all eligible retail food businesses in NSW. However, it was identified that

public awareness of the scheme is limited, business participation was low, businesses

understanding of the scheme and its purpose is mixed, and promotion has been variable. These

limitations on uptake are in part due to its voluntary nature and reluctance by business to display

low ratings.

In other countries, food hygiene rating systems operating internationally are either mandatory

or heading towards a mandatory approach and there is robust evidence that these systems have

a positive impact on food safety compliance. In some instances, a reduction in reported

foodborne illness has also been demonstrated coinciding with the introduction of mandatory

food hygiene rating systems. For example, the UK has made the Food Hygiene Rating Scheme

(FHRS) mandatory starting from 2019 after being voluntary for 14 years.

The Food Hygiene Rating Scheme (FHRS) is a Food Standards Agency (FSA) and local

authority partnership initiative operating in England, Wales and Northern Ireland. It provides

information about the hygiene standards found in food premises during inspections carried out

by local authorities to check compliance with legal requirements. This transparency allows

consumers to make informed choices about where they buy their food and provides an

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

141

important incentive for businesses to achieve and maintain compliance with food hygiene law

and so protect their customers.128

In the UK, consumers in Wales were the first to benefit from the mandatory display of the food

hygiene-rating sticker that gives them a quick and easy way to know about hygiene standards

at food businesses. Since mandatory display was introduced, further improvements in hygiene

standards occurred, with 96% of businesses achieving a three (‘Generally satisfactory’) rating

or higher. The FSA’s fifth review of the operation of the FHRS appeals system in Wales found

an increasing trend in food businesses achieving a three or four (‘Good’) rating exercising their

right to appeal – an indication of the value businesses place on achieving a higher rating. The

FHRS has continued to record a rise in standards across England and Wales, and in Northern

Ireland where sticker display is also mandatory. Overall, 96.5 per cent of food businesses

achieved a rating of three or above and 71.8% a rating of five.

In Indonesia, there is actually a similar program carried out by NADFC, which is called the

Food Star Charter. This program is voluntary with the aim of encouraging the food industry to

apply food safety principles and to gain recognition for its efforts to meet food safety

requirements. Food Star Charter gives recognition to food businesses that have implemented

food safety principles. There are three levels of Food Star Charter, which are gradual

recognition of the implementation of food safety along the food chain. However, this program

is prioritised to be implemented in school canteens.

Following the FHRS in the UK, Indonesia can apply the food hygiene-rating program on a

mandatory basis to get better results and impacts. This mandatory enforcement can be started

in stages from one city to another, while the progress and impacts resulting from this mandatory

implementation are monitored. To begin this program, NADFC should work with other food

safety related parties to help the aim to be reached successfully. For example, to collect the

data of food businesses (including MSMEs and street food vendors), NADFC will need to work

with the Street Food Vendors Association. When compared to NSW, almost all food business

actors are registered by the government, have licenses, and are regularly monitored. This data

collection has received less attention from the Indonesian government.

In addition, to implementation of this Food Hygiene Program, NADFC must be supported by

sufficient resources, such as enough funding, ample testing laboratories, and adequate number

of competent food inspectors. Therefore, the current NADFC’s resources can be partly

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

142

allocated to conduct this program. Also, if more funding is needed, NADFC can perform an

industry-funding model that has been analysed in sub-section 6.3.3 of this chapter.

6.3.5. Lack of Coordination amongst Administrative Bodies

As already mentioned in Chapter 3, in carrying out its function, NADFC is experiencing an

issue related to coordination with the other food safety related bodies. One example of this

issue is found in the coordination between NADFC and local government in the household

industry regulation. This is because the GR 86/2019 stipulates that administrative bodies do

not always have enforcement power.136 This lack of coordination has resulted in lower

compliance of household industry compared to other food businesses, even though the

household industry is one of the major food providers in Indonesia. This sub-section tries to

examine the issue and provide input to improve coordination between NADFC and local

government in regulating food adulteration in the household industry.

As alluded to earlier,138 household industry regulation is one of the regulations that uses task

sharing, namely between NADFC and local government. According to Government Regulation

86/2019 on Food Safety (GR 86/2019), pre-market regulations for home-industry which

include registration and issuance of food safety certificate,s are implemented by the local

government.139 Meanwhile, NADFC and the local government carry out the post-market

regulatory authority such as inspection jointly or individually.140 In practice, the local

government issues food safety certificates without conducting any inspection of premises. If in

the future it is proven that the business actor does not meet the food safety requirements, the

local government may revoke the permit on the recommendation of NADFC. If the NADFC

laboratory test proves that a home-industry has committed a food safety violation, NADFC

must report it to the local government to be subject to administrative sanctions.

However, as explained in Chapter 3 of the thesis, the level of compliance of the household

industry with food safety regulations is lower than other types of food businesses. This happens

because in practice the local government often ignores NADFC reports about household

industry violations without any legal consequences. As a result, there are still many household

industries that do food adulteration.

In an effective food safety administrative framework, the roles of the administrative bodies

must be well defined and they should be coordinated in achieving a single mission. This is what

has been missed from the coordination between NADFC and the local government. The

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

143

arrangement in GR 86/2019 only regulates the division of tasks between administrative

bodies146 and there are no technical regulations on the household industry regulation by

NADFC and local government.

There have been efforts from NADFC and the local government to improve coordination

between the two, namely through a Memorandum of Understanding (MoU). The signing of

this MoU is an implementation of Presidential Instruction 3/2017 on Increasing the

Effectiveness of Drug and Food Control, in which the text of the regulation instructs both

central and regional stakeholders to take steps according to their respective duties, functions

and authorities to make effective improvements and strengthening of drug and food control, in

addition to those contained in the Regulation of the Minister of Home Affairs 41/2018 on

Increasing Coordination of Development and Supervision of Drugs and Food in Regional Level

which have the scope of coordination of development and supervision of drugs and food

including the use of drugs, medicinal ingredients, traditional medicines, cosmetics, health

supplements, processed food and hazardous materials that have the potential to be misused.

Unfortunately, this MoU only contains a statement of commitment between NADFC and the

local government to carry out food control effectively, and, more than that, not all regions have

signed the MoU with NADFC.

In NSW, NSWFA appoints all NSW councils and the Office of Environment and Heritage as

enforcement agencies under the Food Act 2003 (NSW). Coordination between NSWFA and

local councils is regulated nationally through the Food Regulation Partnership (FRP). FRP is a

joint initiative that has been claimed by NSWFA as a strong food surveillance partnership

model which aims at ensuring that consumers have safe food and the NSW food industry

continues to thrive.

The objectives of FRP are to clarify the shared task and responsibilities of local government

and improve the coordination between NSWFA local councils, and avoid duplication between

them. Also, the partnership helps the enforcement agencies to act rapidly in case of food

emergencies and food recalls. Those goals are realised by holding many foundational

program activities such as the FRP Portal that was launched in April 2019. The FRP Portal

provides information between agencies; provides training and networking opportunities for the

508 enforcement agencies’ Environmental Health Officers (EHOs) to maintain the EHOs’ skills

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

144

and knowledge; promotes consistency in inspection and enforcement; and identifies emerging

risks.

FRP brings advantages towards the compliance of food safety laws and regulations. A summary

report of NSW enforcement agency activities in the retail food service sector 2018– 2019

shows that the compliance with food safety requirements across the retail food sector has

improved since the commencement of the FRP in 2008 and remains steady.155 Also, under the

FRP there has been improved levels of cooperation between the NSWFA and LC; low levels

of duplication of regulatory services; improvements in the effectiveness of council regulatory

services; increased EHO efficiency across councils; and some improvement in food

surveillance and enforcement consistency, but more is needed.

The number of warning letters issued by enforcement agencies dropped slightly (from 11,962

to 11,394), whilst the number of prohibition orders served fell almost 5% (202 to 193), the

number of seizures fell 37% (46 to 29) and the number of prosecutions fell by 56% (from 18

in 2017–2018 to 8 for this period). Significantly, the number of penalty infringement notices

also dropped substantially from 1,839 in 2017–18 to 1,654, representing a 10% reduction. This

drop, coupled with the increase in issued improvement notices, might be due to enforcement

agencies adopting an quick enforcement approach to address non-compliances, as

recommended by the NSWFA.

This solution can be applied in Indonesia by initiating a partnership model that not only

confirms the commitment between NADFC and the local government, but also clarifies the

division of tasks and responsibilities between the two. In addition, to ensure that NADFC and

the local government perform their functions effectively, a forum for training and various

information facilities related to enforcement between NADFC and local government can be

established. It is hoped that, with this solution, overlap, duplication, and lack of coordination

between NADFC and local government can be minimised.

In addition, the coordination of NADFC with other food safety related bodies can be improved

through the initiation of a single highest agency (as below) which functions as the coordinator

of the entire regulatory framework that is analysed below.

Single Highest Food Safety Authority

Indonesia is operating an integrated food safety control system called Integrated Food Safety

System (IFSS). Integrated food control systems are operated when there is the desire and

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

145

political will to achieve effective collaboration and coordination between bodies across the

farm-to-table continuum. IFSS is a system developed by a team of Indonesian and Australian

specialists, funded by the Indonesian government, the Australian Agency for International

Development (AusAID) and the Australian Government Analytical Laboratories (AGAL) to

improve public health and to increase trade. The IFSS is based on the WHO document

‘Guidelines for Strengthening National Food Safety Programmes’. IFSS was officially

launched by the Coordinator Minister for People’s Welfare at the NADFC in Jakarta in May

2004.

In IFSS, industry, consumers, and government play roles as the three main pillars to realise

food safety. Food producers are responsible to produce better quality and safer food based on

their awareness of food safety,161 through the application of Good Manufacturing Practices;

Hazard Analysis Critical Control Point (HACCP); and Halal Assurance System. Consumers

take the responsibility to obtain general knowledge of food safety; to be selective in choosing

food products; to implement good food handling practices; and to form consumer

associations.164 While government is in charge of establishing food safety standards;

requirements and regulations; supervising the food industry; educating consumers about food

safety; gathering information and research in the field of food safety; and providing health

facilities.

The Indonesian government appoints several government bodies from various sectoral

departments, namely National Agency for Drug and Food Control (NADFC), Ministry of

Health, Ministry of Agriculture, Ministry of Marine Affairs and Fisheries, Ministry of Trade,

Ministry of Industry, and local government. Along with the other food safety stakeholders,

these government agencies carry out three main risk analysis activities which are grouped in

three different networks, namely Food Intelligence Network (Risk Assessment), Food Control

Network (Risk Management), and Food Promotion Networks (Risk Communication). One

party may enter into more than one network, according to their duties and fields. The members

of the networks work as equal partners by sharing information, discussing existing problems,

and deciding the best way to improve the performance of each institution in order to improve

the quality and safety of national food.167 Further, the functions and powers of these

government agencies are regulated in Government Regulation 86/2019 on Food Safety (GR

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

146

86/2019) based on food business types (fresh food, processed food, retail, home-industry, and

ready-to-eat).

Omojokun argued that whatever system is in place, adequate communication and coordination

among different institutions are crucial. The system that would facilitate regulatory action for

food safety should be based on the principle of transparency, inclusiveness, integrity, clarity of

roles and rules, accountability, risk-based approach and equivalence as the benchmarks against

which it would be measured.

Hariyadi considered that the IFSS is very complex and the coordination model was unclear. In

fact, coordination was a critical point for a successful IFSS. Moreover, the division of power

between bodies often creates confusion. For example, due to the advancement in production,

packaging, and technology, it is increasingly difficult to distinguish the types of food. In

addition, the fragmented regulation for food often creates confusion on which body should act,

especially in the event of food safety incidents.

Hariyadi argues that the involvement of many administrative bodies in the food safety control

system has led to the confusion of the responsible authority in Indonesia.173 The unclear food

safety highest authority creates confusion over who should be appointed to negotiate at the

international level in terms of agreement on international food safety standards.174 Moreover,

in an emergency, such as when food-borne illnesses occur, the public is in more need of

assurance; however, at such times the government fails to provide consumers with a sense of

security. Because it is rare that a single agency has full jurisdiction over the entire scope of a

major food safety problem, sometimes it becomes extremely difficult to find a spokesperson

who can rapidly clarify the facts and assure the public of availability of the direly needed

assistance on time. Far more typically, the public is faced with a lengthy delay while

overlapping bureaucracies creak into some attempt at a coordinated response. While the search

for who knew what and when goes on, the crisis worsens and public confidence erodes. As this

occurs, the public may be exposed to risk longer than necessary. For example, in 2018, the

consumers in Indonesia were confused by the government response regarding the case of 27

brands of imported canned mackerel that contained worms. At that time, there were three

parties who responded in this case, namely the Ministry of Fisheries and Marine Affairs

(MoFMA), NADFC, and the Ministry of Health (MoH). MoFMA is responsible as the

institution that has issued a certificate from the quarantine agency for fishery products. NADFC

has a role in the food registration, while MoH is the agency in charge of food poisoning cases.

At that time, the Minister of Health issued a response stating that the worms contained in the

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

147

canned fish product were not dangerous to health. Therefore, the worm content in the canned

mackerel is not a cause for concern. On the other hand, NADFC ordered the

canned mackerel company concerned to withdraw the product. The Indonesian Consumers

Foundation (YLKI) criticised NADFC’s actions for only issuing product recall orders, without

any investigation into the cause of the contamination.

To solve the issues of coordination, overlapping, and duplication in food adulteration

regulation, this thesis proposes an appointment of a single highest authority for food safety in

Indonesia. The urgency to appoint a single agency was also conveyed by Hariyadi who

proposed the establishment of a National Food Safety Authority Agency which will later be

tasked with managing the national food safety risk assessment process, the results of which

will be input for all stakeholders to formulate risk management and communication policies in

accordance with their respective fields.

Bass and Raul argue that a single agency makes sense. It cuts costs, makes accountability lines

clear, and certainly avoids the lacunae that result in embarrassing gaps in screening or post-

poisoning finger pointing. A central coordinating unit creates a single reference point for the

system, and addresses the scale problem by reducing administrative complexity, streamlining

accountability and setting clear regulatory goals. A single food agency would be better able to

coordinate, guide, and educate both consumers and food businesses. It also would have data

collection and reporting advantages and the enforcement would be more focused, more timely

and informed and more accountable.

Several countries such as Canada, Germany, Ireland, the Netherlands, Bangladesh, New

Zealand and the United Kingdom (UK) have decided to consolidate food safety regulatory

bodies and appoint a single highest authority. Government officials consistently stated that the

net effect of their country’s consolidation has been or will likely be beneficial. For

example, the UK made a change in 1997 in the food safety system due to weaknesses in the

old food safety system, such as the duties and authority of regulatory bodies that were confused.

In addition, there was a conflict of interest in the UK Ministry of Agriculture, Fisheries and

Food (MAFF) between the duties and responsibilities for sponsoring the food and farm

industries and ensuring the safety of food. MAFF was accused of favouring producers rather

than the interests of consumers. Both the responsibility and authority of MAFF and the

Ministry of Health were believed to lead to confusion. Third, enforcement of food law by local

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

148

government was uneven. For some local governments food safety was a high priority while in

other local governments such a crucial issue was largely ignored.

To address these problems, in November 1999 a proposal to form the Food Standards Agency

(FSA) received Royal Assent and became operational on 3 April 2000 in the UK. Most food

safety matters from MAFF and the Department of Health were transferred to the FSA. In

consequence, the FSA does not face the internal tensions that used to bedevil MAFF. The

fragmentation of responsibility within central government was overcome by transferring most

of the staff with food duties from MAFF and the Department of Health to the FSA. The FSA

also oversees enforcement by setting standards and auditing local authorities’ compliance with

them, so trying to tackle the problem of uneven enforcement.

The establishment of the FSA as a single authority has a good impact on food safety in the UK.

Three years after the FSA became operational, 18% reduction of foodborne illness in the UK

had been achieved and according to FSA annual surveys towards consumer attitudes to food

standards, confidence in the role played by the FSA in protecting health has grown from 50%

to 60% over the first four years.

The FSA continues to improve and innovate to ensure safe food for the UK community. For

example, when the UK was in the process of leaving the European Union (EU), the FSA was

quick to respond to changes related to incident management. Because the UK lost full access

to the EU notification system (which also contains information on incidents of foodborne

illness), the FSA then built a new system to triage wider sources of intelligence, not limited to

EU notifications. With this new notification system, the FSA has been able to act more quickly

on emerging incidents.

The FSA is even able to foster strong relationships with food safety authorities across Europe

and worldwide with a mutual interest in information sharing. More recently, FSA has increased

its engagement with the International Food Safety Authorities Network (INFOSAN), managed

jointly by the FAO and the WHO of the United Nations. This collaboration provides an

extensive reach and a framework for communicating food safety issues with countries across

the world. In addition, the FSA proves that, even in crises, the FSA has still made progress in

modernising the food regulation system in England, Wales and Northern Ireland by introducing

a simple, easy to use digital system to register a food business with a local authority.

Meanwhile, this thesis proposes the appointment of single agency for food safety in Indonesia

in line with the NSW food safety system. In NSW, the NSW Food Authority (NSWFA)

maintains most of the food adulteration administrative framework. It coordinates the local

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

149

government bodies, Food Standards Australia New Zealand (FSANZ), Department of Primary

Industry, NSW Department of Health and other bodies necessary for maintaining the safety

across the whole food area. NSWFA Annual Report 2018–2019 claims that NSWFA monitors

the safety of food in every food chain, from paddock to plate. Ali suggests that the NSWFA

can help cut the cost of food regulation; thus the cost of compliance can be reduced. It provides

a well-structured regulatory mechanism for the food industry by administering and enforcing

state and Commonwealth food legislation.

In the context of Indonesia, NADFC can be appointed the highest agency which will be

coordinating the whole food safety regulatory framework in Indonesia. NADFC will continue

to function as a Non- Departmental Government Institution that is responsible to the President.

NADFC will be tasked with overseeing food safety in Indonesia with changes to its functions.

Initially, one of the functions of NADFC was the preparation and formulation of national

policies in the field of food safety. This function, as analysed in sub-section 3.2.1 of this thesis,

will be transferred to a special body appointed to prepare food standards. Meanwhile, NADFC's

function in preparing food standards is to actively participate in applications and proposals for

amendments to the food standards code.

Apart from that, as explained in sub section 6.2 in chapter 6 of this thesis, NADFC has the

authority to supervise several categories of food, including processed food; specific processed

food and home-based industry; ready to serve food; ready-to-serve food in airports, harbors,

and cross border checkpoints. However, NADFC is not given the authority to enforce the above

food categories, except processed food. Therefore, law enforcement does not run effectively

because it is hampered by bureaucratic matters with other bodies. For this reason, this thesis

proposes, for effective supervision and law enforcement, NADFC is given the authority to

supervise paddock to plate food. This can reduce bureaucratic obstacles that previously existed.

Apart from that, regulation will be centralised on NADFC, this is to avoid uneven enforcement.

For example, in city A, food safety is a concern of the local government, whereas in city B it

is not. In terms of law enforcement, the local government will assist NADFC to ensure that

food in circulation meets standards. Local governments will be given the authority to issue

food business permits, ensure compliance, investigate complaints, and provide education and

food safety trainings.

To ensure strong coordination between NADFC and the local government, this thesis proposes

that the two have a partnership that is outlined in a written regulation. In this way, the task of

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

150

supervision in the regions which was previously under the authority of the TIU has now shifted

to the local government. This is useful for making bureaucracy simpler and saving budget.

Initially NADFC had offices in every city which required a lot of operational costs.

Not only is there a lack of coordination between Not only is there a lack of coordination

between bodies, the enforcement of food adulteration laws and regulations by NADFC is also

hampered by insufficient number of food safety inspectors. The issue is analysed further in the

sub-section below.

6.4. Administrative Enforcement of the Consumer Protection Act 8/1999

The following discussion demonstrates the way consumers can obtain compensation using

alternative dispute resolution under the CPA 8/1999. CPA 8/1999 regulates non-litigation

means of resolving consumer disputes to help consumers get their rights in a timely, easy and

cost-effective way – the Consumer Dispute Resolution Agency (CDRA). In carrying out its

functions, CDRA faces several obstacles that negatively affect its performance effectiveness.

The sub-sections below further analyse these issues and are followed by some possible

recommendations to improve the effectiveness of CDRA in helping consumers seeking

compensation.

6.4.1. Lack of Competence of CDRA Members

Based on the report from the West Java Province Industry and Trade Office in 2017, CDRA

members’ knowledge of consumer protection has not met the requirements. This statement is

based on the empirical experience of researchers in national level training in 2017, which was

carried out in order to increase the capacity of CDRA members in West Java. The training that

was conducted for 132 CDRA members ended with a competency test to measure their

knowledge and skills in conducting consumer dispute settlement. From this test, it was found

that the CDRA members’ understanding of their duties and authority was lacking. An example

of a lack of knowledge of CDRA members can be seen from the mistakes of

CDRA members in implementing ADR. The dispute settlement of Arianto Thaib v Mandiri

Bank was initially attempted to be resolved by the mediation method, but this apparently did

not reach an agreement. Therefore, CDRA members in Padang City then conducted a

settlement process through arbitration. In fact, the Minister of Industry and Trade Decree

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

151

50/ MP/KEP/12/2001 on the Implementation of CDRA’s Duties and Authorities clearly states

that the dispute resolution through conciliation, mediation and arbitration is not a tiered

process. It is not surprising that in 2017, in just five months, 127 CDRA decisions were

annulled by the Supreme Court.

This issue can be resolved by providing training to CDRA members, as was done by CDRA

Tegal City that made a working visit to CDRA in Bogor City. The visit, which was held in

2015, was carried out in the context of a comparative study with the CDRA in Bogor City and

studying the CDRA experience in Bogor City in handling consumer disputes. In addition,

CDRA members can also be provided with technical guidance or training, such as training

organised by the Directorate General of Consumer Protection, the Ministry of Trade of the

Republic of Indonesia in collaboration with the Faculty of Law, Parahyangan Catholic

University (FH Unpar). The technical guidance that was held in March 2020 was attended by

CDRA members from various regions in Indonesia, including North Aceh Regency, Medan

City, Asahan Regency, Pematangsiantar City, Sibolga City, Batam City, Sumbawa Regency,

Palembang City, Purwakarta Regency, Sumedang Regency and Bekasi City. To test the

participants’ understanding, this technical guidance closed with a competency test. Participants

who passed received a Certificate of Achievement and those who did not pass received a

Certificate of Attendance.

However, unfortunately not all CDRAs have access to training or can conduct comparative

studies to other CDRAs. This relates to the budget constraints faced by most CDRAs in

Indonesia which is further analysed in the sub-section below.

6.4.2. Lack of Funding and Facilities of CDRA

Funding for the implementation of the CDRA is obtained from the provincial regional revenue

and expenditure budget.212 The budget is to finance the needs of facilities and infrastructure;

operating costs; honorarium of the chairperson, deputy chairperson, and members of the

CDRA; and honorarium of the head of secretariat and secretariat members. Funding for the

implementation of the CDRA is carried out in accordance with the standard costs of

implementing government activities, and laws and regulations determine the amount. Even

though it has been regulated in the Minister of Trade Regulation 72/2020 on CDRA, it turns

out that many CDRAs in Indonesia are facing budget-related problems. One of the CDRAs

experiencing difficulties in terms of operational financing is the CDRA in Padang City which

only receives a budget of 160 million rupiahs (approximately AUD16,000) in a year. This

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

152

amount is insufficient compared to the existing performance burden and operational needs.

CDRA in Mataram City also complained about the lack of operational budget, where the local

government did not even have a special budget for CDRA operations in Mataram

City.

This limited budget for CDRA affects its performance, for example if CDRA requires the

presence of expert witnesses. With budget constraints, CDRA cannot present expert witnesses

and of course, the dispute resolution process can be hampered. In addition, with minimal

fulfilment of budget requirements, facilities, including salaries, can affect the performance of

CDRA members. For example, the payment of the salaries of 18 CDRA members in Bulungan

and Tarakan was delayed for four months due to limited funding.220 Research by Schneider and

Bowen indicates that the enthusiasm of workers to meet consumer needs will be awakened if

their personal needs are properly met by the organisation where they work. In the context of

CDRA, the fulfillment of salaries, allowances, and facility requirements will determine the

performance of CDRA members. This is evident from the case in CDRA in Pontianak City who

were reluctant to attend the office because their salary was not proportional to their workload.

Another effect of the minimal CDRA budget is the low number of cases that are submitted to

CDRA. For example, at CDRA in Sukabumi, although it has been operating for three months,

the CDRA only received three complaints of consumer disputes. This condition occurs because

there are still many people and business actors who do not understand the role of

CDRA, and even do not know the existence of CDRA. This is because CDRA’s efforts in

Sukabumi to disseminate information to the community are hampered by limited funding.225

In addition, the lack of funding for CDRA also affects the provision of facilities and

infrastructure. In many areas, CDRA facilities and infrastructure are not very feasible to

produce an authoritative image of an institution in the eyes of consumers and business actors.226

Sometimes CDRA borrowed a small room in a local government office, with limited facilities.

When there was an ADR schedule, CDRA had to borrow a meeting room in that office.

The problem of lack of funding has arisen since the issuance of Regional Government Act

23/2014 which contains provisions for shifting of authority from province to district, or vice

versa. This includes the transfer of CDRA budgeting authority from cities to provinces. The

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

153

provisions in this law differ from the CPA 8/1999 that regulates budget allocations for CDRA

in district governments. Because of this shift in authority to the provincial level, CDRA can

now only be established on the recommendation of the governor with a statement of its funding

capacity through the provincial regional revenue and expenditure budget. In fact, not all

provinces have readiness related to this funding, even those that previously had CDRAs that

were already operating.

The budget constraints for CDRA have been overcome in several ways. From 2013 to 2014,

CDRA members in Pontianak City used their personal funds for CDRA operations because

they did not get any funds from the Pontianak City Government. Apart from assistance from

the personal funds of CDRA members, sometimes local governments fill the gaps in the CDRA

budget by seeking grants. Although these efforts deserve appreciation, grants cannot be made

continuously, because they are not in accordance with the principles of responsible budgeting,

namely through an annual budget submission system based on a work plan. In addition, the

provision of grants on a regular basis is not recommended because the Audit Board of the

Republic of Indonesia could consider it as corruption.

Given the problems in the funding, the current chapter suggests that the transfer of authority

and inter-governmental CDRA budgeting must first be transparent. Thus, CDRA can prepare

itself, for example, by making a draft budget that will be submitted to the government. Also,

the government of Indonesia must allocate sufficient resources for CDRA given the important

role of CDRA in consumer protection in Indonesia.

6.5.Summary and Conclusion

As have been identified in Chapter 3 of this thesis, NADFC is experiencing several issues in

carrying out its functions, such as pre-market regulation (food registration); lack of

coordination between administrative bodies; inadequate number of food inspectors; lack of

testing laboratories; and lack of public knowledge and awareness towards food safety. This

chapter analysed the problems concerned, referring to the administrative enforcement in NSW.

The food safety system, pattern, strategies, and programs in NSW have been analysed in the

current chapter to provide insights to improve the effectiveness of NADFC’s performance in

regulating food safety in Indonesia. From the analysis, the thesis proposes several

recommendations, such as adding to the number of NADFC human resources to support the

carrying out pre-market regulation. Also, the competence of the personnel should also be

Chapter 6: Administrative Enforcement of Food Safety Regulation in Indonesia

154

maintained and enhanced to be able to functions maximally. The solution to recruit additional

personnel was also made as a recommendation to improve the effectiveness of food inspection.

In addition, an enforcement guideline can be established to support the performance of food

inspectors.

For the issue regarding coordination between NADFC and Local Government, the current

thesis suggests that a regulatory partnership can be initiated. In addition, to improve the

coordination among all food safety related bodies, this thesis suggests appointing a single

coordinating body that functions to coordinate the whole regulatory framework.

Meanwhile, the shortcomings in NADFC testing laboratories can be solved by involving

private laboratories in food safety assessment. This can be done by applying some requirements

that must be fulfilled by the applicants. Regarding the lack of community knowledge and

awareness, NADFC can conduct a training and coaching clinic for business actors with relevant

material. The government also can provide a subsidy in the form of funding to help the small

food businesses to fulfil their basic needs. Therefore, the compliance towards food adulteration

laws and regulations can be improved. On the issue of lack of consumer knowledge and

awareness towards food safety, this thesis recommends NADFC implement a mandatory Food

Hygiene Rating to all food businesses in Indonesia.

To solve the issues regarding NADFC funding, the current chapter suggests that NADFC can

impose the obligation for food businesses to pay their own regulatory costs. This funding model

(industry funding) is believed to help NADFC get funding to carry out its functions. Industry

funding can be implemented in Indonesia with some adjustments according to the

characteristics and capacities of food businesses in Indonesia.

This chapter also analysed the effectiveness of the CDRA in resolving consumer claims. From

the analysis, it is found that the performance of CDRA is hampered by several issues, such as

lack of competence and funding in CDRA. Therefore, the current chapter recommends that

government can sufficiently provide funding for CDRA.

The present chapter also found issues on the performance of the NGOCP in ensuring consumer

protection. This chapter found that the NGOCP is not available in all areas in Indonesia;

therefore, to better protect the consumers, this chapter recommends that the NADFC is given

power to file lawsuits against the fraudulent business actors.

155

Chapter 7: Judicial Enforcement of Food Adulteration Laws in Indonesia

7.1. Introduction

The present chapter discusses the judicial enforcement of food adulteration laws in Indonesia.

Law enforcement is an embodiment of the legal objectives of laws. The quality of law

enforcement refers to the efficacy of the judicial system in addressing the violation of law. This

chapter discusses judicial enforcement of food adulteration laws in Indonesia and the

competent court and parties authorised to file a lawsuit against business actors. In addition, this

chapter analyses issues that can hinder effectiveness in judicial enforcement. The judicial

enforcement of food adulteration laws in Indonesia was not carried out effectively due to

several issues. Less experienced judges, corruption, other parties’ involvement in the judiciary

process, and delay in the delivery of justice have affected the effectiveness of judicial

enforcement in Indonesia.

This chapter is divided into five sections. Section 7.1 introduces the chapter, while section 7.2

gives a brief overview of the present courts in Indonesia. Section 7.3 discusses the competent

courts dealing with food adulteration cases in Indonesia and their trial procedure. In section

7.4, the issues in judicial enforcement for food adulteration laws are analysed, while section

7.5 summarises and concludes the discussion of the chapter.

7.2. A Brief Overview of the Present Courts System in Indonesia

In Indonesia, law enforcement is carried out by the Constitutional Court, Judicial Court,

Supreme Court judicial bodies under the Supreme Court. The structure of courts in Indonesia

can be seen in the figure below.

Chapter 7: Judicial Enforcement of Food Adulteration Laws in Indonesia

156

Figure 7.1: Structure of Courts in Indonesia

The general court has the authority to examine, try to decide both criminal and civil cases. The

general court consists of the District Court and the High Court. The District Court is located in

the municipality or in the capital of the regency, and its jurisdiction covers the territory of the

municipality or regency.6 The High Court is located in the capital city of the province, and its

jurisdiction covers the territory of the province. Under the general court, special courts can be

established which have the authority to examine, hear and decide certain cases. However, there

are no special courts with jurisdiction over food safety cases.

The following section discusses the competent courts and procedure of judicial enforcement

for food adulteration cases in Indonesia.

7.3. Competent Courts and Judiciary Procedure for Food Safety Cases

The judicial enforcement of food adulteration is stipulated in the Food Act 18/2012 and

Consumer Protection Act 8/1999 (CPA 8/1999) as discussed below.

Chapter 7: Judicial Enforcement of Food Adulteration Laws in Indonesia

157

7.3.1. Food Act 18/2012

According to s 6(1) of the Criminal Procedure Code Act 8/1981, investigators are police

officers of the Republic of Indonesia and certain civil servants who are given special authority

by law. Police investigators have the authority to:

i. receive reports or complaints from the public regarding the existence of a criminal

act;

ii. take the first action at the scene;

iii. order a suspect to stop and check the suspect’s identification; iv. carry out

an arrest, detention, search and confiscation; v. carry out inspection and

confiscation of letters; vi. take fingerprints and take a picture of a person; vii.

summon people to be heard and examined as suspects or witnesses; viii.

summon expert witnesses if necessary; and ix. stop the investigation.

In the field of food (and drug) regulation, investigation is carried out by the NADFC

investigator or a police officer. The NADFC investigator is entitled to:

i. conduct examination of the accuracy of reports or information relating to food crime; ii.

summon someone to be heard and examined as a suspect or as a witness; iii. conduct

searches and confiscation of evidence; iv. request information and evidence from a person

or legal entity; v. make and sign the minutes; vi. stop an investigation if there is not enough

evidence; and

vii. request expert assistance in the context of carrying out investigative duties.

In carrying out its duties, NADFC investigators are under the coordination and supervision of

the police. If an act of arrest and detention is required, NADFC investigators coordinate with

police officers.12 After conducting an investigation, the NADFC investigator submits the

results of the investigation to the public prosecutor through the police investigator.13

7.3.2. Consumer Protection Act 8/1999

Section 45(1) of the CPA 8/1999 states, ‘every consumer who has been injured can sue business

actors through an institution that is tasked with resolving disputes between consumers and

business actors or through courts located within the general court.’ As discussed in Chapter 4

of the thesis, consumers can freely choose to seek compensation through litigation or through

Chapter 7: Judicial Enforcement of Food Adulteration Laws in Indonesia

158

the Consumer Dispute Resolution Agency (CDRA) that uses arbitration, mediation and

conciliation settlement methods. In case the parties do not accept the CDRA decision, then

within 14 days the parties can submit objections to the District Court. In addition, a lawsuit can

be filed if the business actor refuses to implement the CDRA decision. In this case, CDRA

submits the decision to investigators to carry out further investigations.

Settlement of consumer disputes through the courts refers to the provisions of the general court

under the Civil Procedure Code. It is a formal law that regulates how to ensure compliance

with civil law (as material law) by means of a judge. In other words, Civil Procedure Code is

a law that regulates how to file a lawsuit and implement a judge’s decision. Civil litigation can

be filed using conventional civil action procedures, class action lawsuits.

The above discussion on the judicial enforcement of the major food safety laws in Indonesia

indicates that the enforcement officers (NADFC investigators) or the injured consumer may

file a case. The following sections analyse the issues concerned in the judiciary process of food

adulteration cases in Indonesia.

7.4. Issues in Judicial Enforcement for Food Adulteration in Indonesia

The issues include inadequate sanctions, dishonesty of the judges, lack of judges’

independence, and delay in judiciary process.

7.4.1. Inadequate Application of Criminal Sanctions

An authoritative judiciary is shown by judges who can perform judicial duties, namely

receiving, examining and adjudicating cases fairly. Gultom, a senior judge in Indonesia, argues

that the most crucial duty of a judge is when he or she has to determine the severity of the

punishment for the wrongdoer. The basis for legal considerations results in one

conclusion: either (i) the defendant is found not guilty; (ii) the defendant is free from all legal

charges; or (iii) the accused is found guilty and must be punished.

The judge must use their conscience in deciding a sentence. The judge must be able to interpret

this problem and solve it, not only tied to legalistic rules but also to the competence and

reasoning of the judge.22 When a defendant is found guilty, the judge’s most difficult task is to

determine the severity of the sentence. In their consideration, the judge must see, for example,

whether the defendant’s act caused large losses to many people, whether the act was carried

out continuously or not, and whether the elements of the indictment were fulfilled.

Chapter 7: Judicial Enforcement of Food Adulteration Laws in Indonesia

159

Especially after the enactment of the Government Administration Act 30/2014 that introduced

discretion, this problem will be related to the sociological, philosophical, and juridical aspects

of a case. In addition, s 97(1) of the Criminal Procedure Code regulates incriminating

conditions such as: (i) the defendant’s act disturbed the public; and (ii) the defendant’s act

caused harm to another person, in this case the consumer. Meanwhile, the mitigating

circumstances include: (i) the defendant has never been convicted; (ii) the defendant behaves

politely and honestly; (iii) the defendant regrets and promises not to repeat his actions again in

the future; and (iv) the defendant has family dependents. Decisions that do not involve

considerations related to the sociological, philosophical, and juridical aspects will be viewed

as a judgment based on procedural justice, not substantive. In other words, it is as if the judge

is only acting to punish and not judge.

The standard of severity for a judge’s decision is not regulated in law. Besides the maximum

or minimum imprisonment or fine, it is entirely up to the conscience and conviction of the

judge. The problem is, the conscience and conviction of one judge is different from another

judge. It is proven that even though the facts and the laws that are violated are the same, the

judges’ decisions can be different.

Although the severity of the sentence really depends on the judge’s conscience, judges in

Indonesia often impose too light sanctions for food adulteration offences. For example, the

owner of Sumber Mares Company was found guilty of deliberately committing the crime of

producing food for sale using formaldehyde to be used as a food additive. Sumber Mares

Company produces wet noodles 3–4 times a week, which produces an average of 1 to 1.5

tons of wet noodles in one production. For his actions the perpetrator was sentenced to

imprisonment for two months and a fine of 500,000 rupiahs (approximately AUD$500). This

punishment was very low compared to the prescribed sanctions. S 136(1) of the Food Act

18/2012 stipulates that such crimes are subject to a maximum imprisonment of five years or a

maximum fine of 10 billion rupiahs (approximately AUD$1 million). Based on this provision,

the punishment for the actions in the above decision is classified as light. Meanwhile, a wet

noodle producer in the city of Semarang was sentenced to two years in prison and a fine of 50

million rupiahs (approximately AUD$5000). The owner of the food business was proven to

produce wet noodles using formaldehyde as a preservative.

When compared, the sentences in the two decisions are very different, even though the

provisions that were violated were the same. In fact, in the second case, the number of

dangerous products produced was less, namely 500–600 kg, compared to the first case that

Chapter 7: Judicial Enforcement of Food Adulteration Laws in Indonesia

160

produced 1.5 tons of dangerous wet noodles a day. Logically, the more products that are

produced, the wider the health impact on society will be.

In addition, the basis for the judges’ considerations in the two decisions above is the same. The

aggravating factors for the defendant, among others, were that the defendant’s actions disturbed

the public and the defendant’s actions had harmed consumers. Meanwhile, the mitigating

factors are that the defendant had never been convicted; the accused was polite in court and

confessed his actions; the accused was sorry and promised not to repeat his actions in the future;

and the defendant had family dependents. Sentences that are too low will not have a deterrent

effect on the perpetrators. Not surprisingly, many food adulterators do it again because they are

not afraid of punishment.

Sentencing Guidelines

Jackson cites three main prerequisites for a good judging system ‘... they have known

procedures, their behaviour is fairly predictable and they are very respectable.’ To be able to

predict the behaviour of a judge, a standard is needed that can be a limit or guideline for a judge

in deciding a case. With these guidelines, the judge’s actions can be predicted and will not go

beyond what has been regulated.

In NSW, the task of judges to determine the severity of punishment for perpetrators is assisted

by the sentencing guideline called the Crimes (Sentencing Procedure) Act 1999. S 3A Part 1 of

the Act stipulates that the purposes of the Act is to:

a. ensure that the offender is adequately punished;

b. prevent crime by deterring the offender and other persons from committing similar

offences;

c. protect the community from the offender;

d. promote the rehabilitation of the offender;

e. make the offender accountable for his or her actions;

f. denounce the conduct of the offender; and

g. recognise the harm done to the victim of the crime and the community.

The Crimes (Sentencing Procedure) Act 1999 contains guidelines for the court in deciding the

appropriate sentences of offences. The guidelines include the provisions on aggravating,

mitigating and other factors in sentencing and power to reduce penalties.

Chapter 7: Judicial Enforcement of Food Adulteration Laws in Indonesia

161

The present thesis recommends that Indonesia enact a similar guideline to help the judges in

sentencing. The issue of sentencing is an urgent issue to be resolved in Indonesia, because

many judges’ decisions have been challenged in the Supreme Court because they are

considered unfair. The academic and senior judge who has been judging for 35 years, Gultom,

also expressed an urgent need related to sentencing guidelines. This guideline is important to

prevent inconsistency in determining the severity of sanctions.

The section below discusses the effect of the quality of judges’ education on the quality of the

decisions they produce.

7.4.2. Educational Qualifications of Judges

Esser argues that the ability to decide in a decision is the result of education and experience.

Education will determine the manner of thinking of the judge in making decisions. Solaiman

argues that if a judge does not have enough knowledge, integrity, efficiency, integrity, and

honesty, it may result in miscarriage of justice. He added these factors can hinder justice in

various ways, namely when laws have shortcomings in explicitly proscribing the disputed

conduct of the defendants or when the laws are unclear and ambiguous.

In Indonesia, the undergraduate education program places too much emphasis on normative

understandings so that the doctrines and traditions adhered to by judicial bodies in Indonesia

only conceptualise judges as law-speakers which they must find from formal sources that have

been predetermined doctrinally. To change such a mindset, further education and scholarship

programs for judges are an important and urgent need. Regular training for judges to keep

abreast of legal developments is very important.

In Japan, after passing two stages of a written examination, a prospective judge is again

required to take formal education for two years to achieve a degree equivalent to a Master.

However, learning law does not stop at formal academic education. Especially for judges, a

life-long learning is very necessary, for example legal reasoning by discussing the

theoreticalphilosophical realm and the legal cases faced. Continuous learning is expected to

encourage fresh judgments with landmark decision values, so that they not only function as

legal craftsmanship and legal mechanics but have a critical perspective to change the situation

to be fairer.

Chapter 7: Judicial Enforcement of Food Adulteration Laws in Indonesia

162

In Indonesia, s 14(1e) Act 49/2009 on Second Amendment to the General Courts Act 2/1986

stipulates that to be appointed as a court judge, a person must pass a judge education program.

Therefore, the Research and Development and Education and Training Agency for Law and

Judiciary of the Supreme Court has developed an integrated judge candidate education

program, an intensive program based on a curriculum prepared based on grouping of basic

materials related to integrity, legal knowledge and supporting material groups. This program is

held for a period of 65 weeks and combines in-class training and on-the-job training methods

that will raise the standards of prospective judges to be truly ready to carry out their duties as

a judge.

In addition, it is the duty of a judge candidate to sharpen his or her social sensitivity, research,

organise, discuss legal issues, and read and write as part of the process to become a judge.

Judges and prospective judges must enrich themselves with knowledge, for example through

books. Adequate literacy helps judges to be able to decide a case more wisely and fairly.

Judges’ decisions as intellectual work require analysis and interpretation in a comprehensive,

argumentative manner and judges need to be equipped with adequate legal reasoning so that

the level of accuracy and intellectuality is reflected.

Unfortunately, the provision of resources to improve judicial literacy is still inadequate. Juwana

states that, in most libraries in court, there is not much literature available, so it is impossible

to use it as a reference to make a judge's decision. In fact, the law and regulation textbooks

were not available to judges, so the judges had to buy their own with the limited salaries they

received. The state should provide them.

Apart from the above recommendation, the present thesis also suggests establishing a

sentencing guideline that can be used by judges in deciding cases. The part below discusses

more about the sentencing guideline.

Special training and experience are necessary to deal with the complex cases. Inconsistent and

less satisfactory court decisions due to lack of proper training can cause the judiciary to lose

public trust. The purpose of law is to protect human interests by defending their rights and

obligations, and inadequately trained judges may not be able deliver justice to society. Apart

from the issues analysed in the above part of this thesis. There are other issues related to the

integrity of judges when trying cases in court, which are discussed in the sub-section below.

Chapter 7: Judicial Enforcement of Food Adulteration Laws in Indonesia

163

7.4.3. Dishonesty of the Judges

The sacred responsibility of judges in examining and deciding cases places judges in a noble

position. Unfortunately, according to Suparman, money or economic power play a strong role

in the trial process. Juwana added that from the lower level to the upper level of the judicial

institutions, money influences the judge’s decision. Money can regulate how low the sentence

will be, and it can even free the defendant from conviction.42

Even corruption within the court is considered commonplace. For most legal practitioners, the

allegation of collusion and even corruption in the judiciary is not something strange or

surprising. It is the belief of lawyers that they should not rely solely on juridical arguments to

win the cases they handle in court. ‘Non-juridical’ approaches are very much needed, and are

often even more decisive than juridical factors. As a result, in Indonesia, corruption is

considered a natural thing, so that people who are clean are considered deviant.

Corruption cases within the judiciary are usually carried out in the form of bribes. A significant

amount of bribery can pose a threat to the stability and security of society; can damage

democratic institutions and values, ethical values, and justice; is discriminatory and

undermines honest business ethics and competition; and harms sustainable development and

upholding of the law. More than that, this has harmed the noble profession of a judge, who is

called a ‘representative of God’.

Transparency International Indonesia (TII) presented the results of a study on the Bribery and

Corruption Perception Index that shows the involvement of judiciary institutions (including

judges) with higher index and nominal bribes compared to other institutions. In Indonesia,

there are cases of judges’ arrests related to bribery cases, which occur in various types of courts

across Indonesia. For example, two judges at the South Jakarta District Court were sentenced

to four years and six months in prison and a fine of 200 million rupiah (approximately

AUD$20,000) subsidiary to two months in prison after being proven to have accepted a bribe

from the Director of CV Citra Lampia Mandiri (CLM), Martin P. Silitonga. The two judges

violated s 12 letter C Act 31/1999 as amended by the Corruption Eradication Act 20/2001 and

s 64 paragraph 1 of the Indonesian Criminal Code. The defendants received bribes of 150

million rupiahs (approximately AUD$15,000) from Silitonga through his lawyer. Meanwhile,

the Substitute Registrar of the East Jakarta District Court, M. Ramadhan, received 30 million

Chapter 7: Judicial Enforcement of Food Adulteration Laws in Indonesia

164

rupiahs (approximately AUD$3000) from Silitonga. The bribe was to influence the decision to

cancel the acquisition agreement between CV CLM and PT Asia Pacific Mining Resources.

Another example of bribery in the court can be seen in this case. The Panel of Judges at the

Jakarta Corruption Court sentenced Merry Purba to six years in prison. Merry is considered

proven to have received a bribe of US $150,000 from a businessperson related to the handling

of a corruption case at the Medan District Court.

Not only that, bribery has tarnished the Indonesian Constitutional Court because one of its

judges was proven to have accepted bribes. Patrialis and his close friend Kamaludin received

US $50,000 and 4 million rupiahs (approximately AUD$400) to help win the verdict in case

No. 129 / PUU-XIII / 2015 regarding judicial review of Law 41/2014 on Animal Husbandry

and Animal Health (related to meat imports), which was submitted to the Constitutional

Court.50 The bribery case in the Constitutional Court was not the first: previously, the Chairman

of the Constitutional Court was sentenced to life imprisonment by the Jakarta Corruption Court

after being found guilty of accepting bribes related to a regional election dispute.

Increase the Salary of Judges

Although currently judges receive a performance allowance or remuneration, this allowance is

not significant enough to support a judge’s basic needs. This is because apart from not being

given every month, this allowance is used to meet family needs and other expenses that must

be prepared for when moving from one region to another.

Juwana in his research explained that at the beginning of the independence of legal institutions

in Indonesia, especially the Judiciary and the Attorney General's Office, they were filled with

the best human resources at that time. Not a few judges or prosecutors have become professors

at various well-known universities. The professions of judge and prosecutor were highly

respected at that time. In terms of income, the monthly salary of a judge and prosecutor at that

time was very good when compared to that of a lawyer. During their active period, judges or

prosecutors would not change professions to become advocates unless they have retired.

However, in the 1970s, after the opening of foreign investment, the legal profession underwent

a very fundamental change. Various law firms sprung up that not only handle cases before the

courts but also assist clients in drafting contracts. The compensation received by a lawyer is

far higher than that of a judge and prosecutor, up to five times the monthly income of a judge

with a 10-year career.

Chapter 7: Judicial Enforcement of Food Adulteration Laws in Indonesia

165

As a result, the best graduates from top universities are more interested in becoming advocates

(practising lawyers) after graduation. Even if there are those who choose to become judges or

prosecutors, that is often because of idealism and because they are not accepted by well-known

law firms.

With the reduced interest in becoming a judge, the next problem that arises is that the quality

of judges is not always very impressive because the background to become a judge is

dominated by those who do not meet the criteria. Posner says that ‘If relative judicial incomes

took a big tumble, the applicant pool would become increasingly dominated by single,

independently wealthy, older, dual-career, unsuccessful, power-hungry, publicity-seeking and

lazy lawyers’.

Financial security for judges is one element that has received widespread attention in almost

all legal systems in the world. For example, in America, the Constitution Act, s 167 section 110

mandates the adjustment of income for judges to support increased performance and

independence of judges. In other words, welfare is an internal factor that can affect the

principles of justice, namely the independence of judicial power. Posner uses the term

‘institutional factors’ that can influence judicial behaviour, namely ‘such as how clear or

unclear the law is, salary and workload, and the structure of judicial promotion’.

Juwana believes that law enforcement officials must get special attention from policy makers.

Prioritising the welfare of law enforcement officials must be the foundation of solutions and

not just programs. Promoting welfare is intended for two purposes. First, so that the influence

of money in law enforcement can be minimised. Second, to attract qualified law faculty

graduates with integrity from various well-known universities into law enforcement in the

public sector.

The lack of high salaries for judges is not the only factor that causes a judge to be involved in

corruption. Although it is widely expected that a strong sense of morality and ethics should

prevail over the financial needs of a person so long as he or she is holding a position of judge,

there are reasons to believe that the recruitment process may be flawed as well.

Transparent Recruitment Processes

In the context of the court as an organisation, the progress of an organisation is greatly

influenced by the quality of the judges. One of the ways to obtain good resources for judges is

Chapter 7: Judicial Enforcement of Food Adulteration Laws in Indonesia

166

through a system of recruitment or selection of judges. A good judge is also an internal factor

that can affect the freedom or independence of judicial power. Judges essentially need both

institutional independence as well as personal independence in making fair decisions. Only

judges with quality and integrity can decide cases that reflect the sense of justice in society,

namely in accordance with the law. There have been many writings and views that elaborate

on the criteria for a good judge. Some of these criteria, for example, are legal skills and

adequate experience, integrity, morals and good character, good reasoning, a broad vision, the

ability to speak and write well, able to enforce the rule of law and act independently and

impartially, administrative capabilities and efficiency.

Buitendam, the former Minister of Justice of the Netherlands, stated that ‘good judges are not

born but made’. Good judges can only be born from a good system, namely through a good

recruitment, selection and training system. Regarding the recruitment mechanism and process,

the Supreme Court Blueprint explains that the main problems of the recruitment system are

transparency and accountability.63 The explanation seems to be true considering the non-

transparent recruitment of judges in Indonesia, which reaps extremely bad consequences.For

example, in the recruitment process of constitutional judges, the mechanism is not clearly

regulated in the law. It is not surprising that many appointments of Constitutional Court judges

have resulted in lawsuits at the State Administrative Court because they are considered not

transparent and accountable. For example, in the appointment of one of the judges of the

Constitutional Court, Patrialis Akbar, the recruitment process was deemed less transparent and

accountable. The nomination of Mr Akbar was considered legally flawed because it was not

transparent and participatory. It was also considered to have violated s 19 of the Constitutional

Court Act 24/2003 because the selection process was not transparent and accountable. At that

time, there was no official announcement of the selection of Constitutional Court judges.

However, suddenly Mr Akbar was appointed as a candidate. The background of Mr Akbar, who

was a former politician, was also questioned. With the appointment of Mr Akbar as a judge at

the Constitutional Court, the composition of the Constitutional Court judges has become

unbalanced, namely: four people with political party backgrounds, three people from court

judges, and two people with academic or bureaucratic backgrounds. Such a composition can

potentially interfere with the independence of the Constitutional Court because of the

dominance of political interests.

Chapter 7: Judicial Enforcement of Food Adulteration Laws in Indonesia

167

Apart from intellectual expertise, judges should have exceptionally high moral standards. The

honesty of the enforcement institutions is essential for the enforcement of any law. Although

an honest judiciary is fundamental to provide the people with meaningful remedies against

their grievances, the above discussion demonstrates the lack of such a judiciary in Indonesia.

In addition, the above discussion has portrayed the importance of a transparent and accountable

selection process of judges. Judges recruited through an unfair process in violation of law will

arguably perform poorly in their roles.

Faster resolution of judicial disputes

The issue of inordinate delay in the judiciary in Indonesia has negatively affected the

confidence of the public. S 4(2) of the Judicial Power Act 48/2009 stipulates that the judiciary

is carried out simply, quickly and at low cost. However, in Indonesia, delay in the judicial

process has become an issue. In practice, it can take up to six months to hear a lawsuit in the

District Court, up to one year for appeal and up to 2-3 years for appeal to the Supreme Court.

In 2017, the accumulation of cases in the Supreme Court reached 30 thousand files.71

In 2017, there were 293 cases of violations in the field of medicine and food that were brought

to court. However, only 27 cases (9.21%) have received court decisions. In Indonesia, there are

even cases whose resolution took nearly a decade, namely the case of the Supersemar

Foundation managed by President Soeharto. The case began in 1998, when the Attorney

General’s Office found indications of irregularities in the use of funds from foundations

managed by Soeharto. In 2008, the South Jakarta District Court granted the Attorney General's

lawsuit and sentenced the Supersemar Foundation, chaired by Soeharto, to pay compensation

to the state amounting to 46 billion rupiahs (approximately AUD$4.6 million) for

misappropriating the management of education funds.74 The South Jakarta District Court ruling

was strengthened by the Jakarta High Court in 2009 which stated that the Supersemar

Foundation had committed an illegal act. Then in 2010, the Decision of the Jakarta High Court

was strengthened again at the Supreme Court level. The panel of judges chaired by Supreme

Court Justice Harifin Tumpa sentenced the Supersemar Foundation to pay compensation to the

state. However, there was a mistyping in the court decision, which should have been written as

Chapter 7: Judicial Enforcement of Food Adulteration Laws in Indonesia

168

185 billion rupiahs (approximately AUD18.5 million) instead of 185 million rupiahs

(approximately AUD$18,500). Because of this mistake, the case was resolved in 2015 with

indictment of President Soeharto’s family to pay 4.4 trillion rupiahs (AUD440 million) to the

state.

In addition, a phenomenon that often occurs in Indonesia is the habit of judges to postpone the

reading of decisions for non-urgent reasons. For example, in the trial of the Presidential

Election Act 42/2008 it took more than one year until the decision was read. Ashidiqie

commented on the case by saying ‘Justice delayed, justice denied’. Not only in Constitutional

Court trials, delays in reading decisions are often encountered in criminal cases. Usually, such

delays are due to the judges’ unpreparedness due to lack of efficiency in case management.

With such delays, the principle of a speedy trial is not fulfilled.

Delays in court processes cause people to be reluctant to seek justice in court, because of the

length of time it takes to complete a case. It usually takes six months to hear a lawsuit in trial

court. Meanwhile, the appeal examination takes one year, and the cassation takes two to three

years,79 not to mention the convoluted execution process that slows down the settlement of

74Sandy Indra Pratama, Anggi Kusumadewi, ‘Chronology of Suharto’s Rp4.4 Trillion Supersemar Case’ The CNN

Indonesia (online) 11 August 2015 <https://www.cnnindonesia.com/nasional/20150811103858-

1271329/kronologi-kasus-supersemar-rp44-triliun-soeharto>.

cases. Due to the lengthy trial process, case files have accumulated in court. Tjoneng in his

research stated that in the Supreme Court, the accumulation of cases reached 30,000 files. In

addition, with the lengthy delays in case settlement, all parties consider the cost of the case will

be very expensive, because, logically, the longer it takes to settle a case, the higher the costs.

The existence of this phenomenon has led to the saying in Indonesia ‘seeking justice in the

court is like suing to get a goat by sacrificing a cow’.

One way to address the delay in the delivery of justice, and minimise the errors of judges due

to the lack of adequate training and experience, is through the establishment of a separate court

for food safety cases.

Several factors cause the trial process to be carried out slowly, including the number of cases

submitted, the limited courtrooms and the limited number of judges. Mertokusumo stated that

it is not uncommon for a case to be delayed for a long time, even until the person concerned

dies. This bad practice erodes public confidence in the judiciary. To redress such a situation,

Bangladesh has recently established separate food courts called ‘Pure Food Courts’ by

empowering a specific court at district level to deal with food safety cases. Therefore, the

current chapter recommends the establishment of a special court for food safety cases. A

Chapter 7: Judicial Enforcement of Food Adulteration Laws in Indonesia

169

special court is a court that has the authority to examine, hear and decide certain cases. Section

8 of the Law 49/2009 on Second Amendment to the General Court Act 2/1986 stipulates that,

in Indonesia, special courts can be established under general courts. Currently, there are more

than eight special courts in Indonesia, namely Juvenile Court, Commercial Court, Human

Rights Court, Corruption Court, Industrial Relations Court, Fishery Court, Tax

Court, and Mahkamah Syar’iah in Aceh.

The idea of forming special courts was particularly developed in the post-reform era, especially

to meet the growing demands for justice that were increasingly complex in society. In addition,

special courts are meant for speedy trials. In India, in view of the large number of pending

cases related to non-compliance with food laws under the Prevention of Food Adulteration Act,

the Food Safety & Standards Authority of India (FSSAI) is likely to establish food safety

special courts in India. Around 100,000 cases related to violence of Punjab Food

Authority (PFA) Act and Rules by the food processors in the country are pending in various

courts and tribunals. To establish Food Safety Special Courts, PFA (amendment) Ordinance

2015 has also been issued by the Punjab government in India. The need to amend the existing

law was felt after the PFA officials found even five star hotels guilty of food contamination and

not observing hygiene standards.

According to the ordinance, special courts may summarily try an offence punishable under this

Act and impose punishment of imprisonment for the term not exceeding six months or a fine

not exceeding one million rupees. If a special court is of the opinion that the nature of the

offence does not justify summary trial, it may conduct a normal proceeding. If an unsafe food

item causes death of a consumer, the defendant has to be tried by a regular court for homicide.

The new ordinance enhanced penalties for committing other food related adulterations. A case

regarding any food offence that falls within the jurisdiction of a special court, pending in any

court, shall be transferred to the special court.

In Indonesia, the impact of the establishment of special courts can be seen in the increase of

the sanctions imposed by the judges. The Criminal Court in Semarang City shows that before

the establishment of the special court, generally judges only imposed five months’

imprisonment. After the Corruption Court was established, the sanctions imposed for the

accused increased by three and a half years of years’ imprisonment. In addition, there has been

a decrease in the number of corruption crimes in Semarang, from 174 cases in 2010 to only

102 cases in 2011.

Chapter 7: Judicial Enforcement of Food Adulteration Laws in Indonesia

170

Law 49/2009 on Second Amendment to the General Court Act 2/1986 stipulates that in a special

court, ad hoc judges can be appointed to examine, hear and decide cases, which require

expertise and experience in certain fields and within a certain period. This law stipulates that

ad hoc judges do not to have a legal education and do not need to take part in a judge education

program as in the recruitment of conventional court judges. However, to be able to adjudicate

and decide on a special case, special expertise is required as well.

In the context of food safety, judges are expected not only to understand the laws governing

food safety offenses and their penalties, but also must understand food safety requirements and

the relationship between food quality and human health. In addition, the honesty and integrity

of judges must also be important requirements for judges of food safety special courts. Thus,

food safety special courts are not only useful in reducing logjam in ordinary courts, but also in

providing justice for the people.

7.5. Summary and Conclusion

This chapter analyses the judicial enforcement for food adulteration in Indonesia. The

competent courts dealing with food adulteration cases have been discussed in this chapter. The

discussion found several issues in judicial enforcement for food adulteration; namely,

nondeterrent sanctions, lack of quality in judges’ education, dishonesty of judges, low salary

for judges, non-transparent recruitment process of judges, and delay in the delivery of justice.

These issues have affected the effectiveness of judicial enforcement in Indonesia; moreover,

they have affected the public trust toward court institutions. Therefore, the current chapter

recommends the establishment of a sentencing guideline for helping the judges to impose

sanctions. Also, this chapter suggests that the salary of the judges can be increased to improve

the judges’ wellbeing and to avoid corruption. In addition, the recruitment process should be

conducted transparently with appropriate and fair mechanisms. Enhancement of the judges’

education and training should also be done to improve the performance of the judges. Lastly,

the present chapter suggests forming a special court for food safety cases. The special court

will help to reduce the logjam of cases. Also, the decision made in the food safety special court

will help to deter the wrongdoers due to the expertise of the judges in this special court.

171

Chapter 8: Summary and General Conclusions

8.1. Introduction

This thesis has examined the legal, regulatory, and enforcement framework of food adulteration

laws in Indonesia. In addition, the civil and criminal liability systems for food adulteration

have been analysed to examine their effectiveness in compensating the damages of the

consumer as well as to punish the food adulterators.

The discussion in this thesis has focused on the regulation of food adulteration by the National

Agency for Drug and Food Control (NADFC) as the primary body for food safety regulation

in Indonesia. The thesis has examined the effectiveness of NADFC by analysing its power,

enforcement, composition, funding, facilities, and accountability.

This study has been done due to the alarming issue of food adulteration in Indonesia that has

been a concern for decades. It was identified that the current food adulteration regulation in

Indonesia is not effective in combating the fraudulent acts of food businesses. The drawbacks

in food adulteration regulation in Indonesia have been examined and several recommendations

have been made. Those solutions are obtained from the analysis of the equivalent food safety

regulation in New South Wales (NSW) that has been chosen as an example of improved and

successful food safety regulatory regime in order to enhance the effectiveness of regulation in

Indonesia. The outcomes of the study are summarised in this chapter.

The current chapter is divided into four main sections. Section 8.1 provides an introduction,

followed by section 8.2 that summarises the key findings of the study. The recommendations

proposed by this research are also presented in this section. Finally, section 8.3 summarises

and concludes the chapter.

8.2. Key Findings of the Study

8.2.1. Legal Framework for Food Safety in Indonesia

Chapter 2 discusses the legal framework of food adulteration in Indonesia. Several issues on

the legal framework of food adulteration in Indonesia have been analysed to provide

recommendations to improve its effectiveness. From the detailed analysis, it is found that the

legal framework for food adulteration in Indonesia is facing several issues. These include less

useful provisions and multiplicity in food safety legal framework of Indonesia.

To solve these issues, this thesis proposes some recommendations. These recommendations are

obtained from the analysis of legal framework for food safety in NSW. This study argues that

Chapter 8: Summary and General Conclusions

172

the issue of less useful provisions can be resolved by building strong collaboration between

food safety related bodies in developing food safety standards. To solved multiplicity in food

safety legal framework in Indonesia, this thesis proposes the unification of food standards

making and codification of food standards.

Strong Collaboration in Food Standards Making

The problem of less useful provisions also refers to too lax food safety and too strict food safety

provisions. To formulate quality standards, food safety standards making should be based on

strong scientific analysis and evidence. Besides that, other factors such as societal, ethical and

traditional matters should also be considered by the food standards maker. To make quality and

effective food safety standards and regulations, this study proposes the initiation of a forum

that coordinates consumers, industries, government, and other related stakeholders. Thus, the

resulting food safety standards can address the interests of the parties involved.

Unification of Food Standards Making

The issue of multiplicity in the Indonesian legal framework for food safety mostly is caused by

the involvement of several bodies in food standards making. These food safety bodies are

authorised to establish food safety laws and regulations (including food standards) based on

their respective fields. Unfortunately, the involvement of these bodies in food standards making

has proven to have caused multiplicity of food safety regulations.

This study proposes the appointment of a body which for developing food standards based on

scientific evidence, providing evidence-based advice, coordinating regulatory responses, as

well as providing information about food standards. This recommendation is obtained from the

analysis of an Australian body called the Food Standards Australia and New Zealand (FSANZ).

FSANZ claimed its success in providing a clear set of laws for food businesses and contributing

to the economic success of food industries in Australia.

Borrowing the idea of a centralisation of food standards making in NSW (Australia), this thesis

proposes the appointment of a single body like FSANZ in Indonesia. This body will be tasked

to formulate food safety standards and to ensure the published regulations can protect public

health and safety.

Codification of Food Standards

The problem of multiplicity has affected the effectiveness of food safety regulations, and has

raised other problems in the attempt to update and disseminate the food standards. To solve

Chapter 8: Summary and General Conclusions

173

this issue, this study recommends the formulation of a food standards code to facilitate the

management of food standards as well as helping the public to more easily access and

understand these standards. This solution is borrowed from the Australian food standards code,

named Australia New Zealand Food Standards Code (ANZFSC). By establishing this code, the

issue of multiplicity can be resolved. Eventually, food standards can be managed, update, and

disseminate well.

8.2.2. Administrative Framework for Food Safety Regulation in Indonesia

Chapter 3 of this thesis provide the description of administrative framework for food safety

regulation in Indonesia. Several bodies involved in food safety regulation are discussed to

know their functions, coordination, and accountability. However, this chapter has focused on

NADFC as the main topic of this study. This chapter aims to identify issues that hinder the

effective performances of the bodies, while the analysis and recommendations for the issues

can be found in Chapter 6 of this thesis.

Based on the discussion in Chapter 3, it is found that NADFC is experiencing several issues.

Limited funding which leads to other issues, such as lack of human resources (number and

competence) and lack of facilities (including laboratory equipment). In addition, the issues of

non- coordination between bodies, lack of knowledge of business actors regarding food safety

regulations, and lack of awareness of consumers are also identified in the discussion.

8.2.3. Civil Liability for Food Adulteration and Contamination in Indonesia

Chapter 4 of this thesis investigates whether consumers have access to compensation for the

damages they suffer due to their consumption of unsafe food product. The chapter investigates

if strict liability is a better way for helping consumer in obtaining compensations. The analysis

in the chapter found that the Consumer Protection Act 8/1999 (CPA 8/1999) is not adhered to

strict liability principle. Some possible solutions has been proposed to help consumers

accessing compensation. The first recommendation is to include the provisions regarding strict

liability in the CPA 8/1999. It needs to be explicitly stated in the Act to avoid improper

application of the law. Secondly, due to the consumer’s reluctance to claim, limited knowledge,

and awareness of their rights, this study suggests that NADFC should be given power to sue

on behalf of consumers.

8.2.4. Criminal Liability for Food Adulteration and Food Contamination in Indonesia The

current provisions in the Food Act 18/2012 and CPA 8/1999 are not well-structured. This

Chapter 8: Summary and General Conclusions

174

study has recommended adopting the three-tier mens rea and penalty model embraced in the

Food Act 2003 (NSW).

This thesis argues that the current criminal penalties for food adulteration offences are

sufficient. However, judges often impose non-deterrent sanctions, so that business actors repeat

their violation of laws in the absence of effective penalties To enhance the deterrent effect on

potential perpetrators, this thesis recommends the publication of the details of convicted

businesses and individuals who have violated the food safety law in line with the provision of

NSW called ‘Name and Shame’. This strategy is considered effective for increasing business

compliance with food safety regulation.

8.2.5. Administrative Enforcement of Food Safety Regulation in Indonesia

As have been identified in Chapter 3 of this thesis, NADFC is experiencing several issues in

carrying out its functions, such as pre-market regulation (food registration); lack of

coordination between administrative bodies; inadequate number of food inspectors; lack of

testing laboratories; and lack of public knowledge and awareness towards food safety. From

the analysis, the thesis proposes several recommendations, such as adding to the number of

NADFC human resources to support the carrying out pre-market regulation. Also, the

competence of the personnel should also be maintained and enhanced to be able to functions

maximally. The solution to recruit additional personnel was also made as a recommendation to

improve the effectiveness of food inspection. In addition, an enforcement guideline can be

established to support the performance of food inspectors.