The Trade Descriptions (Amendment) Act 2021 (‘the Amendment Act’) came into operation on 11 January 2022 pursuant to Legislative Supplement B (P.U.(B)) 11/2022.
 
The main amendments made to the Trade Descriptions Act 2011 (‘the Principal Act’) under the Amendment Act are as follows:
 
Extending the scope of the Principal Act
 
The long title of the Principal Act has been substituted to signify the widening of the scope of the Principal Act to include “prohibiting, restricting or otherwise regulating or controlling the use of any statement, expression or indication which is likely to discriminate or boycott any product or goods or to discourage, forbid, hinder or influence any person from using or consuming any product or goods in the course of trade or business.”
 
In tandem with the foregoing, the Amendment Act also amended the existing power of the Minister to make regulations under section 69(2)(b) of Principal Act to prohibit, restrict, regulate or control the use of any expression or indication used in the course of trade or business to include any “statement” as well.
 
According to the Explanatory Statement to the Parliamentary Bill that was passed as the Amendment Act, this expansion of the scope of the Principal Act will enable “statements, expressions or indications against Malaysia’s major commodities especially palm oil such as the expression “no palm oil” used in any advertisement including food labels, notices and catalogues [to] be prohibited through the regulations to be made under the [Principal Act].”

Power of arrest
 
A new section 39A empowers an Assistant Controller to arrest any person whom he reasonably believes has committed, or is attempting to commit, any offence under sections 5, 16, 17, 20 or 51 of Principal Act.
 
Power to take sample
 
An Assistant Controller is empowered under the new section 52A to demand, select, take or obtain samples of any goods for the purpose of analysis, without payment, from any manufacturer, producer, seller or importer of such goods or from its agent or servant. Refusal to comply with any demand made by the Assistant Controller under this section will be deemed an offence.
 
Power of exemption widened
 
The power of the Minister under section 56 to grant exemptions from the application of any provision of the Principal Act has been significantly widened to include the power to exempt any person or class of persons from the application of any provision of the Principal Act. Prior to the amendment, the Minister could only exempt any description of goods which are intended for dispatch to a destination outside Malaysia or for any specific use or purpose from any of the provisions of the Principal Act.
 
Power to order compliance
 
A new section 56A empowers the Controller to order any person to cease any contravention, refrain from the contravention or refrain from any further contravention of provision of the Principal Act where there are reasonable grounds to believe that such person is contravening, has contravened or is about to contravene such provision.
 
Validation of fees collected
 
Section 9 of the Amendment Act validates the fees charged and collected for services rendered by the competent authority in respect of certification and marking of halal for the period from 1 January 2012 to 22 October 2018 before the Trade Descriptions (Certification and Marking of Halal Fees) (Amendment) Regulations 2018 [P.U. (A) 268/2018] came into force on 23 October 2018.
 
Comments                                                                             
 
The amendments under the Amendment Act are mainly to expand the powers of enforcement under the Principal Act. The most interesting amendment is the expansion of the scope of the Principal Act and the powers conferred on the Minister to issue regulations to counter any smear campaign or discrimination against Malaysian products, such as palm oil.
 
Alert prepared by Nicole Oh Jia Yi (Associate) of the Intellectual Property Division of Skrine.