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New Requirements on Marking of Pre-Packaged Goods to take effect on 1 September 2023

24 August 2023

The Trade Descriptions (Marking of Pre-packaged Goods) Order 2023 [P.U.(A) 197/2023] (“Order”) made by the Minister of Domestic Trade and Cost of Living on 6 June 2023 and gazetted on 3 July 2023, will take effect on 1 September 2023.
 
This Order imposes marking obligations on the wholesaler, manufacturer, importer and producer for all pre-packaged goods whether packaged, manufactured, or produced in Malaysia or imported into Malaysia. However, pre-packaged goods for export out of Malaysia are excluded from the requirements of the Order.
 
The key features of the Order are set out below.
 
Marking of Pre-packaged Goods
 
The Order recognises the measurements declared for pre-packaged goods in terms of area, count, length, weight, and volume. Paragraph 4(1) of the Order provides that all pre-packaged goods shall: 
  1. have appropriate indication in relation to the goods. Only specific name or description would amount to appropriate indication, not generic name or description; 

  2. be expressed and marked with the nominal quantity as specified in Part I of the First Schedule. The units used for nominal quantity are in square metre (m2) and square centimetre (cm2) for area; metre (m), centimetre (cm) and millimetre (mm) for length; kilogramme (kg) and gramme (g) for weight; and litre (l) and millilitre (ml) for volume; 

  3. be expressed and marked with the specified quantity indicator for count as specified in Part II of the First Schedule, where the quantity indication by count shall be expressed in numbers; and 

  4. have details of the name and address of the wholesaler, producer, manufacturer or importer, as the case may be, of the goods. 
Paragraph 4(2) of the Order requires any pre-packaged goods containing solid goods in liquid medium to be marked with, either: 
  1. the nett weight and drained weight declared if the liquid medium is meant to be left over after use or in situation where it might or might not be left over after use; or 

  2. only the nett weight declared if the liquid medium is not meant to be left over after use. 
For this, nett weight refers to the total weight of solid goods and liquid medium in a package, whilst drained weight refers to the weight of solid goods in the liquid medium contained in a package.
 
Further, under paragraph 5 of the Order, the mark on the pre-packaged goods shall: 
  1. be legible; 

  2. use clear words in:
  1. the national language or the national language and any other language if the goods originated from Malaysia; or 

  2. the national language or English language if the goods originated from outside Malaysia;
  1. be stamped or printed in colour which provides clear contrast with the background colour of the goods; and 

  2. have a minimum height between 2 to 6 millimetres according to the specification in the Second Schedule. 
Tolerable Deficiency
 
Even though paragraph 6(1) of the Order stipulates that the average value of the actual quantity determined in the sample pre-packaged goods inspected shall not be less than the nominal quantity, there are provisions for tolerable deficiency in other parts of paragraph 6. For this purpose, tolerable deficiency means the acceptable deficit in the quantity of goods in a package, actual quantity means the nett quantity of the goods after inspection, and nominal quantity means the quantity declared by manufacturer, importer, producer or wholesale of the goods not including the package and any other material packed along with the goods.
 
Paragraphs 6(2), 6(3), 6(4) and 6(5)  provide that: 
  1. for any goods declared in weight or volume, no pre-packaged goods shall have a negative error greater than twice the tolerable deficiency specified in the Third Schedule, notwithstanding Part I of the Fourth Schedule has sampling allowance for goods with negative error greater than the tolerable deficiency; 

  2. in cases involving drained weight, the pre-packaged goods shall not have a negative error greater than twice the tolerable deficiency as specified in the Third Schedule; 

  3. for pre-packaged goods declared in length, the tolerable deficiency allowed shall be two percent of the nominal quantity for each package; 

  4. for pre-packaged goods declared in area, the tolerable deficiency allowed shall be three percent of the nominal quantity for each package; and 

  5. in cases where the pre-packaged goods are declared in counts, the actual quantity shall not be less than the nominal quantity for counts up to fifty. For counts which is more than fifty, the actual quantity shall not be less, on average, of the nominal quantity and the negative error is one piece for each of the beginning hundred. 
Non-conforming packages in testing sample
 
The Fourth Schedule of the Order provides for the allowance of goods from the sample taken for testing that has a negative error greater than the tolerable deficiency, as well as the testing methods on the pre-package goods sample by the Assistant Controller of Trade Descriptions.
 
Penalties
 
A wholesaler, producer, manufacturer or importer who contravenes any provision of the Order commits an offence may be liable, if convicted, to the following. 
  1. If a body corporate, to a fine up to RM200,000 for the first offence, or a fine up to RM500,000 for a second or subsequent offence; or 

  2. If a non-body corporate, up to a fine not exceeding RM100,000 or imprisonment for a term not exceeding three years or to both for the first offence, and for a second or subsequent offence, a fine up to RM250,000 or imprisonment for a term not exceeding five years or to both. 
Comments
 
At present, the Price Control (Labelling by Manufacturers, Importers, Producers or Wholesalers) Order 1980 [P.U.(A) 230/1980] also has provisions for labelling and marking on pre-packed goods. This Order therefore adds new requirements to the list of product marking/ labelling requirements provided under Malaysian law. Whilst this move seeks to provide informational and consumer protection benefits that are in line with other developed economies internationally, the provisions of the Order may in certain cases lead to an overlap with other provisions for product marking/ labelling. Market players will have to steadfastly check and comply with all relevant  requirements, including those set out in the Order. In particular, as noted above, the penalties that may be imposed for non-compliance with the requirements in the Order are severe.
 
For the immediate purposes, it would be helpful if the Ministry of Domestic Trade and Cost of Living could clarify whether the provisions of the Order are applicable to only new goods or all goods including pre-existing ones come 1 September 2023. Also, technical guidance from the Ministry may be needed to assist market players, especially micro, small and medium size enterprises who are wholesalers, manufacturers, importers, or producers, to comply with the Order.
 
Article by Joshua Teoh Beni Chris (Partner) of the Product Law Practice of Skrine.

This alert contains general information only. It does not constitute legal advice nor an expression of legal opinion and should not be relied upon as such. For further information, kindly contact skrine@skrine.com.

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