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General Commentary on Pesticides Act: Importation of Pesticide Products into Malaysia

The Pesticides Act 1974 (Act 149) (“Act”) is the principal legislation regulating pesticides in Malaysia. The scope and subject matter of the Act is under the jurisdiction of the Malaysian Ministry of Agriculture and Agro-based Industry[1]. The Act regulates the labeling, registration, importation, manufacturing, advertising, sale and storage of pesticides as well as controls the presence of pesticide residues in food and the reporting and investigation of accidents and injuries caused by pesticides[2].

In addition to and concurrently with the Act, there are several other legislations which are of pertinence in relation to pesticides, which includes:

a. the Environmental Quality Act 1974 (Act 127);
b. the Pesticides (Registration) (Amendment) Rules 2008, P.U.(A)353/2008;
c. the Pesticides (Labeling) Regulation 1984, P.U.(A) 251/1984;
d. the Pesticides (Importation for Educational or Research Purposes) Rules 1987;
e. the Pesticides (Licensing For Sale And Storage For Sale) Rules 2007;
f. the Pesticides (Licensing for Manufacturing) Rules, 2011;
g. the Food (Amendment) Regulations 2004, PU(A) 160/2004; and
h. the Occupational Safety and Health Act 1994 (Act 514).

Coming back to the Act, in general, pesticides refer to any substance, preparation, mixture or material which contains an active ingredient having and/or giving pesticidal properties as listed in the First Schedule of the Act[3].

Section 3 of the Act establishes the Pesticides Board (“Board”) to implement the Act. The Board is also the registration authority in relation to pesticides. The Pesticides Board is comprised of members from relevant government agencies, among which includes[4]:

i. the Director General of Agriculture, who shall be the Chairman of the Board;
ii. a senior officer of the Department of Agriculture, Peninsular Malaysia, who shall be appointed by the Minister of Agriculture and Agrobased Industry, and be the Secretary of the Board;
iii. the Deputy Director General of Health (Public Health);
iv. the Director General of Chemistry;
v. the Director of Pharmaceutical Services of the Ministry of Health;
vi. the Director General of Veterinary Services; and
vii. the Director General of Environmental Quality.

As per the composition of the Board above, the Pesticides Control Division (“Division”) of the Department of Agriculture is entrusted with the task of providing the secretariat to the Board for the implementation of the Act. In addition to managing the registration of pesticides, the Division is also responsible for controlling the use of pesticides and regulating the labeling and advertising of pesticides[5]. The Division is also responsible for carrying out post-registration activities involving enforcement after registration, as well as the detection of pesticide residues in crops and the environment[6]. In addition, the Division acts as a coordinating agency in matters related to pesticide domestically as well as at international level[7].

Registration of Pesticides

Section 7 of the Act requires that any person who is desirous of importing or manufacturing pesticide(s) is required to register such pesticide(s) with the Board in the prescribed manner. Such registration shall be for a period of five (5) years, and may be re-registered at the end of every such five-year period[8]. For the purpose of registration, pesticides are divided into two categories[9], namely:

a. Commodity pesticides – Commodity pesticides are pesticides containing active ingredients that have been registered in Malaysia for not less than 10 years[10];
b. Proprietary pesticides – Proprietary pesticides are pesticides that are not commodity pesticides as defined above. In case the of a pesticide mixture containing proprietary and commodity active ingredients, the pesticide shall be considered as a proprietary pesticide[11].

“Active ingredient” in the above instance refers to an ingredient, as listed in the First Schedule of the Act, which has pesticidal properties and gives pesticidal properties to a substance, material, preparation or mixture, of which the ingredient is one of the constituents of the substance, material, preparation or mixture[12].

It is worth noting that in respect of corporate bodies, only those registered under the Companies Act 1965 or Companies Act 2016 may submit an application to the Board for registration / re-registration of a pesticide[13]. This is especially pertinent in light of the fact that only the registration holder company has a right to import or manufacture such pesticide.

Furthermore, as per a circular issued by the Board, the Board has put a temporary hold in accepting new applications in respect of the registration of commodity pesticides from 1 February 2019 until 30 April 2019[14]. However, there is no similar hold in relation to fresh applications in respect of the registration of proprietary pesticides. In addition, an applying company may only make one (1) application for registration of a pesticide per month[15].

The application fee for the registration or re-registration of a Pesticide is RM1,500 and is payable during the submission of application and is nonrefundable[16]. As for the registration fee, for which payment is to be made before the registration acknowledgement and certificate is issued, the amount is according to the pesticide class as stipulated in sub-paragraph 4(j)(i) Pesticide Regulations (Labelling) 1984, which are as follows[17]:

a. RM3,500 for Class 1a and 1b pesticide;
b. RM2,000 for Class II pesticide;
c. RM1,000 for Class III pesticide;and
d. RM500 for Class IV.

Pesticides registered by the Board including the names of companies registering the products are published in the Government Gazette on a monthly basis, and this information is available through the Department of Agriculture website[18].

Importation of Pesticides

Importation for sales

Any person who intends to import a pesticide for sale must ensure that such pesticide has a valid registration and has the relevant certificate of registration from the Pesticides Board of Malaysia. The importer of the pesticide must, at the point of import, provide the Royal Customs Department of Malaysia with a certified copy of the valid registration certification of the pesticide as provided for under the Customs (Prohibition of Imports) Order 2012[19].

The importer is also required to have an import permit, the application for which is done online via the Dagang- Net e-Permit system. The information required in an e-permit application includes the details of the consignee and consignor, the country/place of origin, the port of entry, source of supply, the estimated date of arrival, the product name, CAS. No of active ingredients, tariff code of active ingredient, the imported amount, the value of the imported amount, and the unit type of product[20].

The minimum time required for processing an application for an import permit application is 5 days[21].

The Agriculture Department verifies the application based on the following criteria, among others:

– that the details in the application is the same as on the Pesticides Registration Certificate (i.e. trade name, active ingredients, percentage concentration, formulations and company name);
– the ‘Consignor name’ is the same as that of the gazetted manufacturer; the details for ‘Consigned from’ is
– the same as the consignor’s address; and
– the registration of the pesticide is valid and subsisting.

The validity period of the import permit is three (3) months[22]. If the import permit has expired, its validity cannot be extended and a fresh application has to be submitted to replace the expired permit[23].

Under current procedures, any pesticide imported into Peninsular Malaysia and Labuan is required to go through inspection and approval by the Malaysian Quarantine and Inspection Services (MAQIS) at the point of entry[24]. For the states of Sabah and Sarawak, the same is handled by the respective state’s customs department together with the Pesticide Control Division of the Department of Agriculture.

Although not directly relevant to the importation process, it is worth noting that a licence is also required in respect of the sale and/or storage of such imported pesticide(s)[25].

Importation for educational or research purpose

An unregistered pesticide may only be imported in a limited quantity for educational or research purposes, or as a registration sample or in the form of an analytical standard, by means of an import permit as provided for under the Pesticides (Importation for Educational and Research Purposes) Rules 1981[26].

The “Guidelines on Application for Permit to Import Pesticides for Educational and Research Purposes” is available from the Secretary of the Pesticides Board upon request and the application forms for the importation of unregistered pesticides for the purpose of research and education, or as pesticide analytical standards, can be obtained from the Pesticides Board[27].

Penalties

It is an offence under Section 13 of the Pesticides Act 1974 to import and/or manufacture pesticides without any valid registration approval from the Pesticides Board. Any person, if found guilty of importing or manufacturing any pesticide without valid registration, is liable on a first conviction, to imprisonment for 5 years or to a fine of RM50,000 and, on a second or subsequent conviction, to prison for 10 years or to a fine of RM100,000 or both.

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1 https://agrochemical.chemlinked.com/chempedia/overview-pesticide-managmentmalaysia
2 Ibid.
3 Section 2 of the Act.
4 Kindly note that this is not an exhaustive list.
5 https://agrochemical.chemlinked.com/chempedia/overview-pesticide-managmentmalaysia
6 Ibid.
7 Ibid.
8 Section 9 of the Act.
9 The Department of Agriculture website lists banned or restricted pesticides, as well as commodity and proprietary pesticides at http://www.doa.gov.my/index.php/pages/view/302
10 Guidelines On Registration Of Pesticides; Source:http://www.doa.gov.my/index/resources/aktiviti_sumber/sumber_awam/maklumat_racun_perosak/pendaftaran_rmp/garis_panduan_racun_makhluk_perosak.pdf
11 Ibid.
12 Section 2 of the Act.
13 http://www.doa.gov.my/index.php/pages/view/443?mid=80
14 Surat Pekeliling Lembaga Racun Makhluk Perosak, Bilangan 1 Tahun 2019.
15 Ibid.
16 http://www.doa.gov.my/index.php/pages/view/443?mid=80
17 Ibid.
18 http://www.doa.gov.my/index.php/pages/view/302
19 https://agrochemical.chemlinked.com/chempedia/overview-pesticide-managmentmalaysia
20 Ibid.
21 Ibid.
22 Ibid.
23 Ibid.
24 Ibid.
25 Section 17 of the Act.
26 https://agrochemical.chemlinked.com/chempedia/overview-pesticide-managment-malaysia
27 Ibid.

 

Prepared by:

Omar Saifuddin Abdul Aziz (Senior Associate) general@azmilaw.com

Muhammad Azly Haziq Sazali (Trainee Solicitor) general@azmilaw.com