This document discusses key areas of hospitality law including hotel reservation contracts, food service law, and halal certification. Some main points: - Hospitality law governs hotels, restaurants, and other food and lodging businesses, covering contract, tort, and statutory law. - Hotel reservation contracts can be oral or written, and typically specify details like payment, cancellation policies, and room guarantees. Hotels may deliberately overbook to minimize unsold rooms. - Food service businesses have potential liability in contract, tort, and for statutory offenses regarding unsafe, unfit, adulterated, or mislabeled food. They must also warn of major allergens and comply with halal certification requirements where applicable.

1. HOSPITALITY LAW
BY MISS HAZWANI BINTI SALLEH

2. OVERVIEW
• Hospitality law is the body of law relating to the foodservice,
travel, and lodging industries.
• That is, it is the body of law governing the specific nuances
of hotels, restaurants, bars, spas, country clubs, meeting and
convention planners, and more.
• Hospitality law doesn’t just involve one area of law. It
encompasses a wide variety of practice areas, including
contracts, tort law, and more.
• While hospitality law covers many different entities, hotels
and restaurants are the two most common hospitality
businesses.

3. RESERVATION CONTRACTS
• A reservation contract is a contract for a room between a
hotel and a guest.
• A reservation can be made orally, however it will invariably be
put into writing.
• The written confirmation may contain other terms and
conditions, including exclusion clauses.
Formation of a Reservation Contract

4. • A booking confirmation usually contains the following
information:
• Name of the guest
• Date of arrival
• Date of departure
• Type of room
• Room rate
• Number of guests in room
• Method of payment
• Cancellation policy

5. WHAT ABOUT
ONLINE
RESERVATION
AGENT (E.G:
AGODA,
BOOKING.COM, ETC)

6. • Where a hotel reservation is made through an online agent,
the booking confirmation is issued by the online agent with
the previous information.
• In addition to the online agent’s own terms and conditions,
the booking confirmation will draw a guest’s attention to the
existence of the hotel’s terms and conditions – which a guest
can enquire with the hotel concerned.

7. • There are 2 types of room reservations:
a) Non-guaranteed reservation:
guest must arrive at the hotel by a specified hour. If he does not arrive by that time,
the hotel may sell the room to someone else, but if never arrives, the hotel cannot
charge him for the room.
b) Guaranteed reservation:
the hotel must hold a room for the guest on the date of arrival. The guest
is charged for the room even if he fails to check-in.

8. Deliberate Overbooking
• A percentage of people who make reservation either cancel at
the last minuteor do not show up.
• Unsold rooms – as a consequence of such no-show – means loss
of revenue to the hotels.
• To minimize, many hotel overbook – they confirm more
reservations than the number of rooms available.
• Deliberate overbooking means the practice of confirming more
reservations than the number of rooms available.

9. What happens if all
who made
confirmed
reservations show
up, such that the
hotel is not able to
accommodate
everyone?

10. • Strictly, a hotel’s failure to honour a confirmed reservation is a breach
of contract.
• However, guests rarely take legal action in such circumstances, since
most hotels would have arrange for the guests to be accommodated in
other hotels.
• The court also is unlikely to entertain such lawsuit.
• Case: McCoy v Homestead Studio Suites Hotel (2007) WL 444956
• The defendant hotel could not accommodate the plaintiffs (would-be-quests) and
notified them in advance. The defendant found them alternative accommodation
and helped them with the move. The plaintiffs’ case against the defendant was
dismissed.

11. Cancellation policy:
• When a would-be guest cancels a reservation contract, he is in
breach of contract.
• A hotel suffers loss as a consequences of this breach
• Therefore, a hotel is entitled to charge cancellation fee for a would-
be guest’s breach of contract
• A would be guest is usually allowed to cancel without liability until a
specified number of days prior to the date of arrival.
– However, the required notice of cancellation varies between hotels.
– A hotel can charge up to100% cost of stay where notice of cancellation is
received less than 48 hours prior to arrival.
– Another hotel may well have a more relaxed cancellation policy

12. FOOD SERVICE
INDUSTRY

13. INTRODUCTION
• There is a distinction between food service
businesses and food manufacturers.
• A food provider’s potential liability is multi-
faceted:
– Contract
– Tort
– Statutory offences

14. Figure 11.1 Food provider’s potential liability

15. 1) LIABILITY IN CONTRACT
• Who constitutes a ‘contracting party’ for the
purpose of a contract for food?
• When a customer purchases food from an eatery,
or consumes and pays for a meal at a restaurant,
there is a contract between the customer and the
food provider.

16. • Case: Lockett v A & M Charles Ltd (1938).
• Facts: Husband and wife went to a hotel for their meals. They
both ordered, although it was agreed that the husband would
pay the bill. The wife suffered from food poisoning as a result of
the food she consumed.
• Held: The wife was entitled to sue the hotel for breach of
contract.it was unclear whether the husband or the wife was in
charge of ordering the food. Therefore, each of them could be
said to have a contract with the hotel, and liable to pay for the
food ordered. Thus, there was a contract between the hotel and
the wife. Since the food caused her food poisoning, it was unfit
for human consumption. This constituted a breach of the implied
term that good would be fit for the particular purpose, ie for
eating.

17. • Potential liability pursuant to the Sale of Goods Act 1957
(SOGA):
– Section 15: goods supplied must match the description
– Section 16(1)(a): fit for purpose
– Section 16(1)(b): merchantable quality

18. 2) LIABILITY IN TORT
• Food providers do owe their customers a duty of care.
• The problem lies in establishing the causal link between a
restaurant’s food and a plaintiff’s illness. A plaintiff must establish
that it was ‘more probable than not’ that the defendant’s food had
caused the illness.
• Where many people had suffered illness after consuming the same
type of food served by the restaurant at around the same time
(McWherter v Toast of Dilworth LLC (2012)).
• Evidence of a restaurant’s unsanitary condition does not of itself,
establish probable cause (Minder v Cielito Lindo Restaurant (1977)).

19. • The extent of facts required to establish a reasonable
likelihood that the defendant had caused the plaintiff’s
illness (Samaan v Kentucky Fried Chicken Pty Ltd
(2012)).
• Scientific analysis of evidence is sometimes required
(Carman v Smithfield Tavern FNQ Pty Ltd (t/a Palmer
Kate’s Saloon) (2000)), Malaysian example: Goh Sze Ching
v Pizza Hut Restaurants Sdn Bhd (2012)).

20. 3) PRODUCT LIABILITY
• Product liability law imposes strict liability – a defendant’s liability
is not determined by ‘fault’.
• Under the Consumer Protection Act 1999 (CPA), a food provider
is liable if his defective product causes death or personal injury or
any damage to the consumer’s property.
• Section 71 of the CPA prohibits exclusion of liability for damage
caused by defective product.

21. 4) INGREDIENTS WARNING AND
ALLERGY WARNING
• The REASONABLE EXPECTATION TEST:
whether an object found in food should have
been anticipated by the consumer
Ingredients warning:

22. • Case: Webster v Blue Ship Tea Room Inc (1964)
• Facts: The plaintiff ordered fish chowder in a Boston restaurant. The
ingredients were haddock, potatoes, milk, water, and seasoning. The
chowder was milky in colour and not clear. The haddock and
potatoes were in chunks and the plaintiff agreed that it was a fairly
full bowl. After a few spoonfuls, she became aware that something
was lodged in her throat as she could not swallow. She eventually
underwent 2 surgeries to have the fish bone removed.
• Held: The defendant argued that fish chowder would be hearty with
chunky . ingredients, and should not be an ‘insipid broth’. That being
the case, one could not expect the fish pieces to be completely
boneless. The court agreed. Thus, fish chowder that contained fish
with bones did not breach the implied term of fitness or
merchantability.

23. • One way to minimize such lawsuits is to warn customers of
certain ingredients in the food.
• Locally, some restaurants apply a fish symbol next to dish to
warn customers that the dish may contain fish bone.
• A spicy dish may have chili symbol next to it
• Some menus even contain ‘star-ranking’ to indicate the level
of spicinessof a dish.

24. Allergy warning:
• Regulation 11(5) of the Food Regulations 1985 lists the specific
food or ingredients known to cause hypersensitivity:
(a) Cereal containing gluten including wheat, rye, barley and
oat;
(b) Nut and nut product including peanut and soybean;
(c) Fish and fish product;
(d) Milk and milk product (including lactose); and
(e) Egg and egg product.

25. • These ingredients should be declared on the label.
• US Restatement Second of Torts, s 402A, comment j states
as follows:
• A seller may reasonably assume that people with common
allergies (e.g. to eggs or strawberries) are aware of them.
Therefore, he is not required to warn against such
allergies.
• But where a product contains an ingredient to which a
substantial number of the population are allergic to, and
the danger of the ingredient is not generally known, the
seller has a duty to warn against it.

26. • Example: Chemical X causes allergy. Not many people
know chemical X causes allergy. If a product contains
chemical X – an allergy warning should appear on
the label.
• A seller has a duty to warn where a product contains
an ingredient to which a substantial number of the
population are allergic to, and the danger is known;
however, the consumer would not expect to find the
ingredient in the product. For example, peanuts can
cause allergy. Many people know this fact. However,
most people do not expect to find peanuts in product
Y. The label of product Y should state that it contains
peanuts.

27. • This duty to warn is imposed only where a seller has
knowledge of the presence of the ingredient and the
danger.
• However, it is not necessarily an excuse for a seller to
say that he has no knowledge concerning the
presence/danger of an allergy-causing ingredient. If
the seller could have discovered this fact through
reasonable skill and foresight, but he did not do so,
then he may be liable (Livingston v Marie Callender’s
Inc (1999)).

28. 5) OFFENCES UNDER THE FOOD ACT 1983
• Definition of ‘food’:
– ‘every article manufactured, sold or represented for use as food or drink
for human consumption or which enters into or is used in the
composition, preparation, preservation, of any food or drink and
includes confectionery, chewing substances and any ingredient of such
food, drink, confectionery or chewing substances’
– Tobacco is not considered food.
– Live animals are not considered food (Chuang Hock Meng @ Chung Hock
Meng v Pegawai Kesihatan Daerah Hulu Langat Kajang, Selangor Darul
Ehsan & Anor (2002)).

29. • Definition of ‘food’:
– Non-food items ‘represented’ as food will be treated as food for the
purposes of prosecution (Meah v Roberts (1978)).
Figure 11.2 Offences under the Food Act 1983

30. SECTION 13—FOOD INJURIOUS TO
HEALTH
• Any person who prepares or sells any food that
contains any substance that is poisonous, harmful
or otherwise injurious to health commits an
offence.
• We also look at the probable cumulative effect.
• It suffices that a food is injurious to the health of
one group of people (e.g. children). It is not
necessary to prove that the food is injurious to
all persons (Cullen v McNair (1908)).

31. SECTION 13A—FOOD UNFIT FOR
HUMAN CONSUMPTION
• Food unfit for human consumption considers:
• Any diseased, filthy, decomposed or putrid animal or
vegetable substance.
• Any portion of an animal unfit for food.
• The product of an animal which has died otherwise
than by slaughter or as game.
• The presence of a foreign substance in food does not
automatically render food unfit for human
consumption.
• See cases: J Miller Ltd v Battersea Borough Council
(1955), Turner & Son Ltd v Owen (1955), Barton v
Unigate (1987)

32. SECTION 13B—ADULTERATED FOOD
• Adulterated food includes:
• Addition of substance that diminishes nutritive or other
beneficial properties
• Extraction/omission of substance that diminishes nutritive
or beneficial properties
• Mixture/dilution with substance of lower commercial value
• Addition of substance prohibited by law
• Non-compliance with standards prescribed by the food
regulations
• Substance exceeded permitted quantity
• Concealment of damage or inferiority
• Tampering with original content of food contained in a
package

33. OTHER IMPORTANT PROVISIONS
• Section 14 – Sale of food not of the nature,
substance or quality demanded.
• Section 15 – Food labelling etc. must comply with
prescribed standard.
• Section 16 – False labelling is an offence. In this
regard, a label may be false, misleading or
deceptive in terms of the product’s character,
nature, value, substance, quality, composition,
merit or safety, strength, purity, weight, origin,
age or proportion.
• Section 17 – Truthfulness of food advertisements.

34. OTHER IMPORTANT PROVISIONS (cont.)
• Section 19 – any proceedings must be brought
before the expiry of 150 days (Carlsberg Brewery
Malaysia Berhad v Pendakwa Raya (1994)).
• Section 23 – Due diligence defence: A defendant
who diligently took reasonable steps to determine
that he does not violate the Food Act or the food
regulations is allowed to argue that he did not
wilfully commit the offence.
• Kluang Rail Coffee case was prosecuted under reg
11(1)(c) of the Food Regulations 1985.

35. 6) THE PENAL CODE
• Section 272 prohibits the adulteration of food
or drink which is intended for sale.
• Section 273 prohibits the sale of noxious food
or drink.

36. 7) TRADE DESCRIPTIONS ACT 2011
• It is an offence to apply a false trade description to any goods.
• It is also an offence to sell, supply or have in possession good with
false trade description.
• It is an offence to make false representation as to the supply or
approval of goods or services.

37. 8) HALAL CERTIFICATION
• Two main subsidiary legislation made pursuant to the trade
Descriptions Act 2011 that deal with the halal certification process
• Trade Descriptions (Definition of Halal) Order 2011 (‘Definition of Halal
Order’)
• Trade Descriptions (Certification and Marking of Halal) Order 2011
(‘Certification Order’)
• A related law is the Trade Descriptions (Goods Made from any Part
of Pig or Dog) Order 2013
• ‘Halal’: permissible or lawful according to Islamic law. Apart from
source/type of food, preparation, processing or storage also affects
halal status.

38. • Licensing bodies for halal certification:
- Department of Islamic Development Malaysia (JAKIM)
- State Islamic Departments or JAIN
• Only a person with halal certificate may display the halal logo on his
food and/or premises.
• The requirements of halal certification and marking of halal logo are
also applicable to all imported food and goods marketed in Malaysia.
• However, if such food and goods are certified by the foreign halal
certification body recognized by JAKIM, no additional halal
certification is required in Malaysia.

39. Figure 11.3 First Schedule (para 4) of the Trade Descriptions
(Certification and Marking of Halal) Order 2011

40. 9) OFFENCES RELATED TO HALAL
CERTIFICATION
• Section 16 of the TDA—False representation as to supply or
approval of goods or services
• A person commits an offence if he falsely represents that his goods or
services or any methods adopted by him are of a kind supplied to or
approved by any person including any government or gov. department or
any international body whether in Malaysia or abroad.
• In the context of halal food, where a manufacturer’s products have not
been certified as halal, but he marks his products with the halal logo, he
falsely represent that his products are approved by JAKIM.

41. • Paragraph 4 of the Definition of Halal Order—Offence to mislead or confuse.
• A person commits an offence if through any preparation or act, he misleads or confuses
people into thinking that a food is halal.
• Para 4 also prohibits the inappropriate usage of holy verses from the Al-Quran or any
matter or object in relation to the religion of Islam
• Example: a restaurant puts up engravings of Quranic verses and a picture of the Kaaba
on the walls. Leaflets or other literature on Islam also available at the cashier’s counter
or a specific area of the restaurant. However, the food served at the restaurant is non-
halal. The restaurant’s décor can be said to mislead or confuse people into thinking that
it serves halal food. This restaurant had committed the offence under para 4.
• Case: JMJ Food & Beverages Sdn Bhd v Mohamad Zukrillah bin Ismail (2016)).
• Paragraph 8 of the Certification Order—Wrongful issuance of halal certificate,
etc. – JAKIM & JAIN are the only competent authorities that can grant
HALAL certification in Malaysia

42. 10) ENFORCEMENT OF THE FOOD ACT
1983
• Enforcement activities are carried out by ‘authorised officers’.
An authorised officer has particular extensive powers.
• Taking of sample for analysis: The food analysis must be carried
out in ‘approved laboratory’.
• The Director General should obtain particulars of certain food
ingredients and has the power to order that food premises be
put in hygienic and sanitary requirements. Where necessary,
such food premises can be closed down permanently.
• Food handler’s training comes under the Food Hygiene
Regulations 2009.