Laws Affecting Small Business: Health

Health laws are made with the praiseworthy intention of protecting the public.

Frequently however, the benefits of the legislation are remote and unproven, and the costs to businesses and society are unacceptably high. Small businesses in particular are hampered by inappropriate health laws governing restaurants, foodstuffs, liquor, smoking, crèches and childminding, boarding houses and small hotels, and abattoirs.

These laws act as barriers to entry, preventing many people from starting a business and creating employment opportunities. They also limit consumer choice. Ironically, some health laws actually exacerbate South Africa’s worst health problem, which is malnutrition caused by protein deficiency, by raising the costs of meat and dairy products and restricting their availability to the poor.

The following recommendations propose the repeal of a number of health laws. If repeal in toto is politically unattainable, they should be substantially relaxed.

There is a widespread misconception that in the absence of legislation, the consumer is unprotected. This is not so. If these laws are repealed, the common law will still apply. The common law provides adequate, and often superior, protection against people who endanger public health. One reason health regulations were considered necessary in the past was that the laws of civil and criminal procedure make the courts inaccessible to ordinary people, especially the poor. (See the entry on “Justice” in this series for recommendations for reform of these procedures.)

• Health legislation regulating the premises and equipment of restaurants, cafes, and caterers should be repealed, or limited to what is regarded as strictly necessary for health and hygiene.
• The primary responsibility of environmental health officers should not be to enforce legislation, but to provide guidance, education and training.
• Foodstuffs laws criminalising the sale of unsound food should be repealed, and reliance should be placed solely on the laws requiring food manufacturers to have procedures for analysing the hazards at critical control points in the manufacturing process, and to have steps in place to avoid those hazards arising.
• Restrictions on the times when bottlestores can sell liquor should be removed.
•  The provincial Liquor Acts’ provisions which treat liquor as a special commodity that must not be offered for sale alongside other goods should be repealed.
• The prohibition against making and selling skokiaan and similar liquor products should be repealed.
• The law prohibiting smoking in so-called “public” places and in workplaces should be repealed. In all privately-owned property, irrespective of whether the public has access to it, the right to smoke should be determined by voluntary agreement between proprietors, their employees, and their customers.
• The prohibition against advertising tobacco products should be repealed. 
• The provision of the Children’s Act which criminalises unregistered child-care facilities should be repealed.
• Instead of relying on compulsory registration to ascertain where places of partial care in their jurisdiction are situated, the authorities should attract childminders by offering them expert assistance, guidance, education and training.
• If there are to be regulations for partial-care facilities, they should contain only the minimum necessary for the health and well-being of the children in care.
• All special bylaws for accommodation establishments should be repealed.
• Occupational and building health laws should be replaced by the single, but clear and effective, common-law requirement that working conditions should be healthy. To this end there should be a systematic critical review of all such measures.
• The Meat Safety Act should be repealed.
• Informal slaughter should be legalised.
• If there has to be a grading system, an abattoir should have the right to process any number of animals in a day in batches up to the maximum throughput of that grade of abattoir.
• Local authorities should establish communal slaughtering places at which small-scale slaughterers and others can slaughter their animals.
• A poultry abattoir should not be required to have a refrigeration facility if the meat and animal products will be disposed of at the abattoir directly to the final consumer.