SON ACT, 2015

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Standards Organisation of Nigeria Act, 2015

INTRODUCTION

It is no news that fake products have dominated our market space and even those that are allegedly ‘original’ are paraded for sale even though they fall below standard. Consequently, there was, without doubt, a need to ensure quality control of manufactured and imported products in Nigeria as the high volume of substandard products either manufactured or imported into the country have continued to have deadly implications on the health of Nigerians and in some cases, resulted in loss of life and property.

It was in the light of this fact that stakeholders have clamoured over the years for amendment or total overhauling of the Standards Organisation of Nigeria (SON) Act, 2004. This clamour is largely due to the fact that the SON Act, 2004 as it was, did next to nothing in ensuring that standards relating to products are being met. This was due in part to the fact that the Law did not impose strict penalties for offences and also saddled the officers of the Organisation with minimal functions and powers.

It was in a bid to cure the ‘defects’ in the SON Act, 2004 that the Standards Organisation of Nigeria Act of 2015 (the “Act”), was enacted. The Act was enacted for the purpose of providing additional functions for the Organisation, increasing penalty for violations; and for related matters. The Act also repeals the Standards Organisation of Nigeria Act Cap 59 Laws or the Federation of Nigeria, 2004[1].

WHAT IS THIS NEW LAW BRINGING TO THE TABLE?

The SON Act, 2015 maintained, to a large extent, the provisions of the SON Act, 2004. It however added some major provisions to ensure efficacy of the Organisation, more stringent penalties for offences and so-on. Some of the salient provisions introduced by the Act are discussed as follows:

Additional Functions of the Council

As we all know, a thing can only function to the extent of its ability. Consequently, a statutory Organisation can only function to the extent of the ability (Powers and functions) conferred upon it by the enabling statute. Thus, the first thing the SON Act, 2015 did to properly position and equip the Organisation to function optimally was to increase its function.

son2The Act expands the scope of duties of SON by vesting the Council with additional powers. For instance, the Act has saddled the organization with the responsibility of evaluation of quality assurance activities, including certification of systems, products and laboratories throughout Nigeria[2]. The Organisation is to establish an Import and Export Product Surveillance, Certification and Conformity Assessment Scheme[3] to ensure that all products imported and exported are up to the expected standards. There shall also be established a mandatory conformity assessment programme for locally manufactured products in Nigeria[4]. Similarly, the Organisation has now been empowered to impose fees, fines or penalties on a person who contravenes any Import or Export Surveillance, Certification or Conformity Assessment Scheme[5]. They are also, amongst others, given the additional responsibility to undertake registration of all manufactured products distributed, marketed and consumed throughout Nigeria[6]; carry out training and undertake the accreditation of training institutions and organisations for purposes of international standards such as ITU, IEC, ISO, OIML, or Codex, standards or system certification throughout Nigeria[7]; establish a Register for National standards, Standard Marks, Certification Systems and Licences into which all matters relating to standards referred to under this Act shall be entered[8]; undertake appropriate investigations into the production premises and raw materials and establish relevant quality assurance systems, including certification of the production sites for regulated products[9];and administer and enforce the provisions of the Act[10].

As seen above, quite a number of the additional functions introduced by the Act are to assist the Organisation in being more proactive in the prevention of substandard products in Nigeria. This, in our opinion is very commendable in the sense that if the structures are put in place to register, track, maintain surveillance and assess the quality of products produced or imported in Nigeria, then, there won’t be such influx of fake and substandard products in our market.

The Organisation has also been given an oversight function. The Act provides that for the purpose of uniformity of standards in Nigeria, the Act provides that all Regulatory Agencies or Organisations dealing with matters pertaining to or related to standards shall do so in collaboration with the Standards Organisation of Nigeria[11].

Stringent Penalties for Non-Compliance

Under the erstwhile Act, the penalties imposed for the various offences under the Act ranged from N200 to N100, 000:00. These penalties were grossly incompetent in serving its deterrence purpose; neither did it constitute enough punishment for the havoc being wrought by substandard goods in Nigerian market.

Apart from the offences already recognized under the old Act, the new Act created some other offences and imposed stringent penalties on defaulters.

By virtue of the SON Act, 2015, both evasion and attempt to evade fees or levies payable or chargeable under the Act is an offence which upon conviction, attracts a fine of not less than N1,000,000 and/or an imprisonment term of not less than nine (9) months[12].

It was with impunity that people flouted the directives of the Organisation in time past, but that will no longer be tolerated under the new Act because now, where a person refuse, neglect or fail to comply with any directive lawfully given by the Organisation, he commits an offence under the Act, and in addition to the forfeiture of any article or product seized, he is liable on conviction to a fine of not less than N1,000,000.00, or to imprisonment and, in the case of a continuing offence, to a further fine not less than N250,000.00 for every day during which the offence continues[13].

It is now an offence for any person, other than the permitted manufacturer, to make, sell, expose for sale or use for the purpose of advertising; any material or document on or in which is portrayed industrial standard of certification mark portraying to be that established under the Act. Anyone in default of this provision is liable upon conviction to a fine of N1,000,000.00 or to imprisonment for a term not exceeding 2 years or both[14]. This is as opposed to the fine of N1,000.00 or 1 year contained in the old Act.

Where a person has been convicted under the Act, the Act gives additional powers to the court to either order the forfeiture of commodities in relation to which the offence was committed, or assess the value of such commodity and impose a fine of that value on the convict; in addition to the usual punishment imposed for that offence under the Act[15]. This is to further serve as deterrence to erring persons.

The law, in its bid to ensure that no offence under the Act goes unpunished, prescribes that where a penalty is not expressly provided in the Act, any person who commits an offence under the Act is liable on conviction to a fine of not less than N500,000.00 or to imprisonment for a term of not less than 9 months or both[16]. This is to drive home the point that this new Act is not going to tolerate any of its provisions being handled in a wishy-washy manner.

Also, non-compliance with Mandatory industrial standard for manufactured goods now attracts a fine of not less than 20% of the value of the product or N2,000,000.00 (whichever is higher) or to imprisonment for a term not less than 3 years or to both for the manufacturer; a fine not less than 20% CIF per shipment or N2,000,000.00 (whichever is higher) or imprisonment for a term not less than 2 years or to both for an importer; and where such good were found with a seller, to a fine of not less than l5% of the value of the product or N1,000,000.00 (whichever is higher) or imprisonment for a term not less than 2 years or both[17]. This is by far one of the laudable provisions of the Act and if properly implemented and enforced, will go a long way in ensuring compliance with product standards as imposed by the Organisation. It is believed that this provision of the law will rid the market of all those substandard and hazardous products daily paraded for sale in our markets, it will also curb the unscrupulous activities of manufacturers, importers and even sellers and ensure that goods conform to the Nigerian Industrial Standards (NIS).

For the existing offences under the old Act, there has been an upward review of penalties[18]. Financial liability for most of the offences under the Act have been reviewed to N1,000,000 and imprisonment term has been increased to between nine (9) months and two (2) years. This is to send an unmistakable warning to manufacturers, importers, sellers, peddlers of fake and counterfeit products and the society at large, that under this new Act, it will no longer be business as usual.

Empowerment of the Organisation

son1The old Act couldn’t do much in curbing fake products and ensuring good standard of products in Nigeria, this is due to the limited power which the law conferred on the Organisation. This new Act has however remedied that wrong by empowering the Organisation in the following ways:

a. Power of Recall[19]

Under the Act, the Minister for Industries is now vested with the power to direct a supplier to recall a defective commodity on the recommendation of the Organisation[20]. Compulsory product recall had been introduced to the Act to ensure that consumers are given maximum protection from defective products. A product recall is a request to return a product after the discovery of safety issues or product defects that might endanger the consumer. The power of product recall is an international best practice standard that has been exploited for years in developed economies and it is a good thing that we now have it in our law. It serves as a protection to the consumer as well as a check on the manufacturer to ensure that products are of good standards before they are being sold.

b. Power to stop and search

The Act empowers the Director General or any other employee or officer of the Council, authorised by him in writing, to stop and search any vehicle[21] or access any premises at reasonable times where there are reasonable grounds for suspecting the warehousing or storage of items in contravention of the Act.

c. Power of seizure and detention

By virtue of the new law, the Director-general, employee of the Organisation or any other person so authorized, can seize and detain any article, product, material or goods which he reasonably believes is in contravention of the provisions of the Act for a period of time not exceeding 90 days without leave of court[22].

d. Powers of the Director-General in relation to hazardous products

Where the Director-general is satisfied that the quality, purity or potency of any product is hazardous to life, property or the national economy, may seize and detain such product, prohibit the sale of such product, seal up premises where such product is been manufactured or direct that the deficiency be rectified[23].

e. Designation of ports for special entry

An order may now be published in a Federal gazette designating certain ports for the importation of certain products into Nigeria. Where such gazette is published, the products named in the order shall be imported only through the designated port[24]. This allows the Organisation to track the goods coming into Nigeria and ensure that they comply with the minimum industrial standards set for such goods.

f. Destruction of violative goods

The goods detained under the Act may be destroyed if the testing indicates that the goods did not meet the relevant Nigerian Industrial Standards and it is reasonable to destroy the goods. At least 14 days notice shall be given of the intention to destroy the goods either by written notice to the owner of the goods or through publication in an official gazette. The organization may even direct the owner of the goods to pay the cost of destruction including the cost of transporting and storing the goods before destruction[25].

All the additional functions of the Organisation as hereinbefore discussed, also forms part of the powers of the Organisation.

Protection of the organization and its members
The Act took several steps in protecting the organization and its members. This is in a bid to ensure that the Organisation and its staff carry out their duties without fear of law suits trailing them for acts done within the confines of the powers vested in them by the virtue of the provisions of the Act. Some of such protective provisions shall be considered hereunder:

a. Exemption from liability

The Act provides that no staff of the Organisation shall be personally liable for any act or omission done or made by him in accordance with the terms of his engagement[26].

b. Limitation of time

The Act limits the time within which an action can be instituted against the Organisation, its member and employee to 6 months from the date the cause of action arose or, in the case of a continuance of injury, within 6 months next after its cessation[27].

c. Pre-action notice

Before a suit can be validly instituted against the Organisation, the Act prescribes that a pre-action notice be issued at least 3 months before the date of the filing of the suit before the appropriate court[28]. The court having jurisdiction in matters relating to offences under the Act is the FHC[29].

d. Recovery of expenses

Any expenses incurred by the Organisation in the exercise of its powers under the Act shall be recoverable from the person to whom the directive has been given[30].

e. Pension

All persons employed in the Organisation are now entitled to pensions, gratuities and other retirement benefits as are prescribed under the Pension Reform Act no 4, 2014. This is in contrary to the old law which was silent as to whether service in the Organization was pensionable or not.

CONCLUSION

It is very obvious from the above provisions that the Act has set out on a very strong foot, which, if given proper implementation and funding, will lead to standardization of products in the Nigerian market. It will ensure that consumers’ lives are not put in jeopardy and that our products can rank pari-passu with international standards.

[1] The long title of the Act
[2] Section 5 (1) (c)
[3] Section 5 (1) (h)
[4] Section 5 (1) (i)
[5] Section 5 (1) (j)
[6] Section 5 (1) (l)
[7] Section 5 (1) (q)
[8] Section 5 (2)
[9] Section 5 (1) (t)
[10] Section 5 (1) (v)
[11] Section 5 (2)
[12] Section 31 (1)
[13] Section 31(2)
[14] Section 26 (1) a & b
[15] Section 26 (3)
[16] Section 32(4)
[17] Section 26 (2)
[18] Section 32 (1)-(3), 26(1)
[19] Section 46
[20] Section 46 (1) (a)
[21] Section 30 (1) (a)
[22] Section 30 (1) (c)
[23] Section 29 (1) (a)-(e)
[24] Section 28 (1)
[25] Section 47
[26] Section 14
[27] Section 39 (1)
[28] Section 39 (2)
[29] Section 35 (1)
[30] Section 31 (5)