CHAPTER 35:03
PESTICIDES

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

PART II
ESTABLISHMENT, FUNCTIONS AND POWERS OF THE PESTICIDES CONTROL BOARD

   3.   Establishment of Pesticides Control Board

   4.   Composition of the Board

   5.   Meetings of the Board

   6.   Allowances of members of the Board

   7.   Non-liability of members of Board, etc.

   8.   Technical committees

   9.   Secretariat of the Board

   10.   Appointment of Registrar and other staff

   11.   Functions of the Board

PART III
FINANCIAL PROVISIONS

   12.   Funds of the Board

   13.   Levy

   14.   Books and other records of accounts and audit

   15.   Annual reports

   16.   Financial year

PART IV
REGISTRATION OF PESTICIDES

   17.   Registration of pesticides

   18.   Application for registration of pesticides

   19.   Consideration of applications

   20.   Importation of unregistered pesticides

   21.   Duration of registration and renewal of registration

   22.   Cancellation and suspension of registrations and permits

PART V
LICENSING OF MANUFACTURE, IMPORT, STORAGE FOR SALE, AND DISTRIBUTION OF PESTICIDES

   23.   Prohibition on manufacture, sale, etc., of pesticides without licence

   24.   Licence to manufacture pesticides

   25.   Licensing of premises to store for sale and sell of pesticides

   26.   Licensing of commercial applicators

   27.   Suspension and cancellation of licences

PART VI
PRESENTATION OF PESTICIDES

   28.   Pesticides containers

   29.   Labels

   30.   Advertising of pesticides

PART VII
HEALTH AND ENVIRONMENTAL MATTERS

   31.   Control of pesticide residues in food

   32.   Duty of care when selling food and animal feed

   33.   Inspection and sampling

   34.   Duties of employers

   35.   Notification of death, ill-health or injury

   36.   Inquiries

   37.   Disposal of pesticides and pesticide containers

PART VIII
ENFORCEMENT

   38.   Designation of inspectors

   39.   Powers and duties of inspectors

   40.   Record keeping

PART IX
ANALYSIS

   41.   Procedure for taking samples of pesticides

   42.   Analysis

   43.   Certificate of analysis

PART X
OFFENCES AND PENALTIES

   44.   Offences

   45.   Fixed penalties

   46.   Personal liability of directors, partners and managers

   47.   Evidence

   48.   Closure of premises and seizure of pesticides, etc.

   49.   Forfeiture, cancellation and other orders

PART XI
MISCELLANEOUS PROVISIONS

   50.   Appeals

   51.   Exemptions for government activities

   52.   Pest emergencies

   53.   Regulations

12 of 2000
G.N. 14/2002

An Act to provide for the control and management of the import, export, manufacture, distribution, storage, disposal and use of pesticides; the establishment of a Pesticides Control Board; and further to provide for matters incidental thereto or connected therewith

[1ST MAY 2002]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Pesticides Act.

2.   Interpretation

   In this Act, unless the context otherwise requires—

   “active ingredient” means the biologically and chemically active part of a pesticide present in a formulation;

   "advertising” means the promotion of the sale and use of pesticides by print and electronic media, signs, displays, gift, demonstration or word of mouth;

   "Board” means the Pesticides Control Board established under section 3;

   "common name” means the name assigned to a pesticide active ingredient by the International Standards Organization to be used as a generic or non-proprietary name for that particular active ingredient only;

   "environment” means the physical factors of the surroundings of the human being, including land, water, atmosphere, climate, sound, odour, taste and the biological factors of fauna and flora, and includes the cultural, social and economic aspects of human activity and the natural and built environment;

   "formulation” means the combination of various ingredients designed to render the product useful and effective for the purpose claimed;

   "inspector” means an inspector designated as such under section 38;

“label” means the written, printed or graphic matter on, or attached to a pesticide, or its immediate container and the outside container or wrapper of the retail package of the pesticide;

   "manufacture”, in relation to a pesticide, means to prepare, compound, formulate, mix, make, pack, label, or otherwise treat the pesticide with a view to its sale, but does not include the carrying out of bona fide research relating to the pesticide or any act incidental to such research;

   "pest” means unwanted species of animals or plants, including vectors of human or animal disease, causing harm during or otherwise interfering with, the production, processing, storage, transportation or marketing of food, agricultural commodities, wood and wood products or animal feedstuffs;

“pesticide” means any substance or mixture of substances intended to be administered on animals, plants or humans for preventing, destroying or controlling any pest, and includes any substance intended for use as a plant growth regulator, defoliant, desiccant, or agent for thinning fruit or preventing the premature fall of fruit, and substances applied to crops either before or after harvest to protect the commodity from deterioration during storage and transport; and for purposes of this Act, any two pesticides which do not have the same manufacturer, formulation and trade name shall be treated as different pesticides;

   "pictogram” means a symbol which conveys a message without words;

   "Prior Informed Consent Procedure” means the procedure, provided for in the International Code of Conduct on the Distribution and Use of Pesticides, for formally obtaining and disseminating the decisions of importing countries as to whether they wish to receive future shipments of pesticides that have been banned or severely restricted in order to protect human health or the environment, in any other country;

   "Registrar” means the Registrar of Pesticides appointed under section 10;

   "restricted pesticide” means a pesticide registered for certain specific use or to be used only under stipulated conditions;

   "sell” includes offer for sale and offer to provide goods as part of a service of pest control even if the goods are described as free or included in the service;

   "trade name” means that name under which the pesticide is labelled, registered and promoted by the manufacturer and which can be used exclusively by the manufacturer to distinguish the product from other pesticides containing the same active ingredient;

   "technical committee” means any committee established under section 8.

PART II
ESTABLISHMENT, FUNCTIONS AND POWERS OF THE PESTICIDES CONTROL BOARD

3.   Establishment of Pesticides Control Board

   There is hereby established a body to be known as the Pesticides Control Board (in this Act otherwise referred to as the “Board"), which shall be responsible for the control and management of all pesticides in Malawi and perform the functions assigned to it by this Act, and which shall be—

   (a)   a body corporate with perpetual succession and a common seal;

   (b)   in its corporate name, capable of suing and being sued;

   (c)   capable of holding, purchasing and otherwise acquiring and disposing of any property, moveable or immoveable, for the purposes of or in the course of carrying out its functions; and

   (d)   capable of doing and performing all acts and things as bodies corporate may by law do and perform.

4.   Composition of the Board

   (1)    The Board shall consist of—

   (a)   the Secretary for Agriculture;

   (b)   the Director of Agricultural Research;

   (c)   the Secretary for Commerce and Industry;

   (d)   the Director of Environmental Affairs;

   (e)   the Principal of Bunda College of Agriculture;

   (f)   the Chairman of the Pesticides Suppliers Association of Malawi;

   (g)   the Executive Secretary of the Consumers Association of Malawi;

   (h)   the Director of the Malawi Bureau of Standards;

   (i)   the Registrar of the Pharmacy, Medicines and Poisons Board;

   (j)   a public health officer, appointed by the Minister; and

   (k)   four other members representing the private sector, appointed by the Minister.

   (2) The Minister shall designate the Chairperson of the Board from among members of the Board appointed under subsection (1) (j), and the term of office of the Chairperson shall be three years.

   (3) A member of the Board appointed under subsection (1) (j) shall hold office for a period of not longer than three years, and may be removed from office by the Minister at any time.

   (4) Each member of the Board may nominate a person by name from the same institution for appointment by the Minister as an alternate member, and if a member is unable to attend a meeting of the Board the appointed alternate member may attend, participate and vote in place of the absent member.

   (5) The Board may invite any person to assist the Board in dealing with any matter, and the person invited may participate in the proceedings of the Board concerning that matter but shall not be entitled to vote.

5.   Meetings of the Board

   (1) Subject to subsection (2), the Board shall hold ordinary meetings for the dispatch of business at least four times a year.

   (2) An extraordinary meeting of the Board—

   (a)   may be convened by the Chairperson at anytime;

   (b)   shall be convened within twenty-one days of receipt by the Chairperson of a request in writing signed by at least four members and specifying the purpose for which the meeting is being convened.

   (3) The Chairperson shall decide where and when the Board shall meet.

   (4) At any meeting of the Board—

   (a)   the Chairperson shall preside;

   (b)   if the Chairperson is absent, the members present shall elect one of their number to preside at the meeting;

   (c)   five members, including the Chairperson or other member chairing the meeting, shall form a quorum; and

   (d)   all questions raised at the meeting shall be determined by the decision of the majority of members present and entitled to vote, but if there is a tie the matter shall be put to the vote and the Chairperson or other member presiding shall have a casting vote.

   (5) The Registrar shall serve as secretary to the Board.

   (6) Subject to this section, the Board may regulate its own procedure.

6.   Allowances of members of the Board

   A member of the Board shall be paid out of the funds of the Board, such allowances as the Minister may determine.

7.   Non-liability of members of the Board, etc.

   No member of the Board or any technical committee of the Board shall be liable for any act or default of his, or of the Board done in the exercise in good faith of the functions or powers of the Board.

8.   Technical committees

   The Board may establish one or more technical committees, to advise it in implementing the provisions of this Act.

9.   Secretariat of the Board

   There shall be a secretariat of the Board which shall consist of a Registrar of Pesticides (in this Act otherwise referred to as the “Registrar") and such other staff of the Board, subordinate to the Registrar, appointed in accordance with section 10.

10.   Appointment of Registrar and other staff

   (1) The Board shall appoint, on such terms and conditions as it may determine, the Registrar who shall be the chief executive officer of the Board and shall in addition perform such duties as the Board may assign to his office and ensure the effective administration and implementation of this Act.

   (2) Without prejudice to the generality of subsection (1), the Registrar shall—

   (a)   issue licences, permits and other authorizations required under the Act as directed by the Board;

   (b)   issue certificates of registration as directed by the Board;

   (c)   maintain a public register of registered pesticides;

   (d)   maintain registers of manufacturers, importers and commercial applicators of pesticides.

   (3) The Board may appoint, on such terms and conditions as it may determine, such other staff, subordinate to the Registrar, as it considers necessary for the performance of its functions and to assist the Registrar in discharging his functions and responsibilities.

11.   Functions of the Board

   (1) The Board shall be responsible for the registration, control and management of all pesticides in Malawi and perform such other functions assigned to it under this Act.

   (2) Without prejudice to the generality of subsection (1), the Board—

   (a)   shall register pesticides and issue certificates and permits in accordance with this Act;

   (b)   shall monitor and control the import, export, manufacture, distribution, sale, storage, use and disposal of pesticides in Malawi;

   (c)   may issue guidelines on the environmentally sound handling and use of pesticides after consultation with such persons or bodies as seem to the Board to be broadly representative of the interests concerned;

   (d)   may, in consultation with the relevant authorities, conduct public educational campaigns on the safe handling and use of pesticides;

   (e)   may advise the Minister on whether or not the Minister should use the power granted under section 23 (3) to exempt a pesticide or class of pesticides from the licensing requirements under the Act, taking into consideration the potential implication for human and animal health and the environment;

   (f)   may advise the Minister in connexion with all matters relating to pesticides and the performance of functions assigned to the Minister under this Act;

   (g)   may propose regulations to be made under this Act by the Minister; and

   (h)   may, subject to the approval of the Minister, delegate any of its powers to any government officer.

PART III
FINANCIAL PROVISIONS

12.   Funds of the Board

   (1) The funds of the Board shall consist of—

   (a)   such money as may be appropriated by Parliament for the purposes of the Board;

   (b)   registration and licence fees prescribed under Parts IV and V;

   (c)   any levy imposed pursuant to section 13;

   (d)   such moneys as may be received by the Board under subsection (2); and

   (e)   such moneys as may otherwise vest in or accrue to the Board.

   (2) The Board may—

   (a)   accept money by way of grants or donations from any source in or outside Malawi;

   (b)   with the approval of the Minister, raise by way of loans from any source in or outside Malawi, such money as it may require for the discharge of its functions; and

   (c)   charge and collect fees in respect of programmes, publications, documents and other services provided by the Board.

   (3) The Board may invest in such manner as it thinks fit, such of its funds as it does not immediately require for the performance of its functions.

13.   Levy

   The Minister, acting on the advice of the Board, and in consultation with the Minister responsible for finance, may by order published in the Gazette, impose a levy on the importation into, or manufacturing in, Malawi of pesticides and the levy shall be appropriated for the general operations of the Board or for certain operations of the Board specified in the Order.

14.   Books and other records of accounts and audit

   (1) The Board shall cause to be kept proper books of accounts and other records relating to its accounts.

   (2) The accounts of the Board shall—

   (a)   be audited annually by independent auditors appointed by the Board; and

   (b)   be examined by the Auditor General before being presented to the Minister in accordance with section 15.

15.   Annual reports

   (1) The Board shall as soon as practicable, but not later than three months after the expiry of each financial year, submit to the Minister a report concerning its activities during that financial year.

   (2) The report referred to in subsection (1) shall be in such form as the Minister shall approve, and shall include information on the financial affairs of the Board, and there shall be appended to the report—

   (a)   an audited balance sheet;

   (b)   an audited statement of income and expenditure; and

   (c)   such other information relating to the Board as the Board may consider appropriate or as the Minister may require.

(3) The Minister shall, during the meeting of the National Assembly next following receipt by him of the report referred to in subsection (1), lay the report before the National Assembly, and the Board may publish the report for sale to the public.

16.   Financial year

   The financial year of the Board shall be a period of twelve months commencing on 1st July in each year, and ending on 30th June in the following year, or such other dates the Minister may specify by Order published in the Gazette:

   Provided that the first financial year of the Board may be such shorter or longer period than twelve months as the Minister shall determine, but being not less than six months nor more than eighteen months.

PART IV
REGISTRATION OF PESTICIDES

17.   Registration of pesticides

   (1) Subject to subsection (2), no person shall import, manufacture or sell a pesticide which has not been registered under this Act.

   (2) An unregistered pesticide may be—

   (a)   imported under an import permit issued under section 20 for the purpose of analysis, registration or research, or under a pest emergency permit issued under section 52; and

   (b)   manufactured for export in accordance with a licence to manufacture issued under section 24.

18.   Application for registration of pesticides

   (1) An application for the registration of a pesticide shall be made to the Board in the prescribed manner and form and shall be accompanied by the prescribed fee.

   (2) An application under subsection (1) shall furnish whatever information the Board may require in order to satisfy itself in respect of each of the matters set out in section 19 (3).

   (3) Subject to subsection (4), the Board shall not disclose any confidential information submitted to it in connexion with an application for registration.

   (4) For the purpose of subsection (3) “confidential information” shall not include—

   (a)   trade names or other commonly used names;

   (b)   broad or general descriptions on use;

   (c)   safe handling precautions to be observed in the manufacture, storage, transport and use of chemicals;

   (d)   recommended methods of disposal and elimination;

   (e)   safety measures in case of accident;

   (f)   physical and chemical data with the exception of data revealing the chemical identity of a pesticide;

   (g)   summaries of health, safety and environmental data, including precise figures and interpretations.

   (5) The Board shall give the applicant a reasonable opportunity of participating in the preparation of the summaries referred to in subsection (4) (g).

19.   Consideration of applications

   (1) The Board shall consider each application as soon as reasonably practicable and shall—

   (a)   register the pesticide, subject to any condition which the Board may consider appropriate; or

   (b)   refuse to register the pesticide; or

   (c)   direct that the applicant furnish additional information or undertake further investigations, tests, trails or analysis in connexion with the pesticide, and communicate its decision to the applicant in writing.

   (2) If the Board gives directions to an applicant under subsection (1) (c), the Board shall reconsider the application in accordance with the procedure in subsection (1) after the Board has received the additional information required and evidence that the applicant has complied with directions.

   (3) Subject to subsection (4), the Board shall register a pesticide if the Board is satisfied that the pesticide—

   (a)   is suitable and effective for the purposes for which it is intended;

   (b)   does not pose a significant danger to human or animal health or the environment;

   (c)   is desirable in that overall the effects of the pesticide are likely to be more beneficial than detrimental to Malawi, its people and the environment; and

   (d)   will be properly packaged and labelled in accordance with this Act.

   (4) The Board shall not register a pesticide if the Board has reason to believe that information furnished or any representation made in, or in connexion with, the application is false or incorrect in a material respect.

   (5) If the Board decides not to register a pesticide, it shall promptly notify the applicant in writing giving reason for its decision.

   (6)    If the Board decides to register a pesticide it shall—

   (a)   assign a registration number to the pesticide;

   (b)   enter the purchase in the register of pesticides; and

   (c)   issue a certificate of registration to the applicant.

   (7) The Board shall cause to be published in the Gazette periodically a list of all pesticides registered under this section.

20.   Importation of unregistered pesticides

   (1) The Board may issue a permit authorizing the importation of a pesticide which has not been registered if the Board is satisfied that the pesticide will be used solely for the purposes of analysis, registration or research.

   (2) An application for a permit under subsection (1) shall be made to the Board in the prescribed manner and form and shall be accompanied by the prescribed fee.

   (3) A permit issued under subsection (1) shall state—

   (a)   the period of validity, which shall not exceed one year;

   (b)   the maximum quantity of the pesticide covered by the permit; and

   (c)   any conditions which the Board considers appropriate to impose to protect human and animal health and the environment, and to give effect to this Act.

   (4) A permit issued under subsection (1) shall only authorize the importation of a single consignment, which may contain more than one pesticide, which shall not exceed—

   (a)   in the case of a liquid pesticide, two litres; and

   (b)   in the case of a powder pesticide, one kilogram, and the permit shall be surrendered to an inspector at the place of importation.

21.   Duration of registration and renewal of registration

   (1) The registration of a pesticide shall be valid for a period of five years.

   (2) The Board may, upon the application of a person desiring to renew the registration of a pesticide, renew the registration for further period of five years if the Board continues to be satisfied in respect of the matters referred to in section 19 (3).

   (3) If the Board refuses to renew the registration of the pesticide in accordance with subsection (2), it shall give its reasons in writing to the applicant.

22.   Cancellation and suspension of registration and permits

   (1) The Board may suspend or cancel the registration of a pesticide or a permit to import an unregistered pesticide if—

   (a)   the registration or permit was secured in contravention of any of the provisions of this Act;

   (b)   the Board considers that continued registration or authorization under a permit is undesirable on the ground that the pesticide is harmful to human and animal health or the environment or is not effective for the intended use;

   (c)   the conditions subject to which the registration or permit was granted have not been complied with;

   (d)   the pesticide has fallen into disuse, or the pesticide is no longer required for the purpose for which the permit was granted;

   (e)   the pesticide has been withdrawn from the market and use and the person upon whose application the pesticide was registered has notified the Board in writing of such withdrawal;

   (f)   the Board is no longer satisfied in respect of any matter referred to in section 19 (3) as a result of the becoming aware new facts or of an unforeseen charge in circumstances.

   (2) Before cancelling the registration of a pesticide or a permit, the Board shall give the party to whom the registration or permit was granted an opportunity to make representations as to why the registration or permit should not be cancelled.

   (3) The Board shall give reasons in writing for the cancellation of a registration or permit to the party to whom the registration or permit had been granted.

PART V
LICENSING OF MANUFACTURE, EXPORT, STORAGE FOR SALE AND DISTRIBUTION OF PESTICIDES

23.   Prohibition on manufacture, sale, etc., of pesticides without a licence

   (1) Subject to subsection (3), no person shall manufacture, export, distribute, store for sale, or sell a pesticide without a licence issued by the Board and in accordance with any conditions prescribed by the Board.

   (2) An application for a licence under subsection (1) shall be made in the prescribed manner and form to the Board and shall be accompanied by the prescribed fee.

   (3) The Minister, acting on the advice of the Board, may by order published in the Gazette, prescribe that a pesticide or class of pesticides may be manufactured, exported, distributed, stored for sale, or sold without a licence.

24.   Licence to manufacture pesticide

   (1) An application for a licence to manufacture a pesticide shall be made in the prescribed manner to the Board which, on payment of the prescribed fee, may issue a licence if the Board is satisfied that—

   (a)   the applicant is technically competent to manufacture the pesticide;

   (b)   the applicant is aware of the toxicity of the pesticide and of the risks involved in using and handling it, and is equipped and able to effectively avoid or minimize the risks; and

   (c)   the premises and manner in which, and conditions under which, the pesticide will be manufactured are appropriate for the purpose and will not endanger human or animal health or the environment and are in accordance with such conditions as may be prescribed.

   (2) A licence under this section—

   (a)   shall specify the specific location and premises at which the manufacture of the pesticide is authorized and shall not apply to more than one premises;

   (b)   shall be valid for five years from the date of issue, but may be renewed on payment of the prescribed fee;

   (c)   may require the licensee to monitor the health of employees who may be exposed to the pesticide;

   (d)   may authorize the manufacture of more than one pesticide; and

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