LEGAL PROTECTION FOR MOSLEM CONSUMERS ON HALAL GUARANTEE OF FOOD PRODUCTS IN INDONESIA
LEGAL PROTECTION FOR MOSLEM CONSUMERS ON HALAL GUARANTEE
OF FOOD PRODUCTS IN INDONESIA
UNDERGRADUATE THESIS
This undergraduate thesis is submitted as one of the requirements to obtain the Degree of Bachelor of
Laws at Faculty of Law Universitas Muhammadiyah Yogyakarta
By:
Name
: Redhita Febri Athifah
Student Number
: 20120610337
Faculty
: Law
Major
: International Program for Law and Sharia
Field of Study
: Commercial Law
FACULTY OF LAW
UNIVERSITAS MUHAMMADIYAH YOGYAKARTA
2016
MOTTOS PAGE
Surah Al-Mujadalah verse 11:
O you who have believed, when you are told, "Space yourselves" in
assemblies, then make space; Allah will make space for you. And when you are
told, "Arise," then arise; Allah will raise those who have believed among you and
those who were given knowledge, by degrees. And Allah is Acquainted with what
you do. (QS.Al-Mujadalah:11)
Surah Ar - Ra’ad
For each one are successive [angels] before and behind him who protect him
by the decree of Allah . Indeed, Allah will not change the condition of a people until
they change what is in themselves. And when Allah intends for a people ill, there
is no repelling it. And there is not for them besides Him any patron. (QS. Ar - Ra’d):
i
DEDICATIONS
This Undergraduate Thesis is dedicated to: My Lord, Allah SWT
Prophet Muhammad SAW
My super Dad, Bapak Sarwan Anthoni
My Mom, Ibu Jamilah Hadi
My beloved Brother
My beloved Sister
All of My families
My Lecturers:
Ibu Dewi Nurul Musjtari, SH., M.Hum
Bapak Dr. H. Muchammad Ichsan., Lc., MA
Bapak Nasrullah, H., S.H., S.Ag., MCL.
My best patner in batch 2012, IPOLIANS
All My Friends at Fakultas Hukum UMY
ii
FOREWORD
Alhamdulillah thanks all praises and gratitudes to Allah without His
blessing and mercy this thesis “LEGAL PROTECTION FOR MOSLEM
CONSUMERS ON HALAL GUARANTEE OF FOOD PRODUCTS IN
INDONESIA will not come to its final format. During the process of thesis writing,
the researcher was assisted, guided, and helped by many people.
Firstly, my deepest gratitude goes to my beloved parents Bapak Sarwan
Anthoni dan Ibu Jamilah Hadi for their advises, supports, encouragements and
prayers for me to complete this thesis; To all my sisters Revty Amelia, Reidhati
Dayang Fadhilah and my Brother Redho Wahyu Akbar, I address my appreciation
for their love and attention.
Then I am most thankful to my advisors Ibu Dewi Nurul Musjtari, SH.,
M.Humas and Bapak Dr. Muchammad Ichsan., Lc., MA, who have given me
guidance, direction, and suggestion with sincerity and patience during the
accomplishment of my thesis. May Allah SWT always give the reward for all of
your good deeds to me.
I am also very indebted to Gaidar Kenny Marcapada, brother Hary Abdul
Hakim, Dita Adilla, Agistha and my beloved brother Ludmi Andevy for supports,
motivations, encouragements and prayers. To my teammates in KKN 03-04, Ipols
2012, Smafa, Ipry-kkp, Fakultas Hukum and Shofia Chairunnisa, Savira
Rahmawati, Najla Asyifa, Marlya Meong, Fifi, Widya Annisa, Jamilah, Riva
Hazmar, Bella, Mella, Cahyaning Putri, Ayu Dyah Ratna, Mutia Melinda, Annisa
Dwi Saputri, Siti Aulia, Isna and others, I addressed my cordial thanks.
iii
I realize that this thesis is far from being perfect. Thus, I welcome any
supportive criticism or suggestion to make it better. Finally, I hope this paper is
useful for all.
Yogyakarta, April 2016
(Redhita Febri Athifah )
iv
TABLE OF CONTENTS
ABSTRACT ............................................................................................................. i
APPROVAL PAGE.................................................................................................ii
ENDORSEMENT PAGE ...................................... Error! Bookmark not defined.
DECLARATION PAGE ........................................ Error! Bookmark not defined.
MOTTOS PAGE…………..……………………………..………………………..v
DEDICATION ........................................................................................................ ii
FOREWORD ......................................................................................................... iii
TABLE OF CONTENTS........................................................................................ix
LIST OF QURANIC AND HADIST ................................................................... xiii
LIST OF STATUTES...........................................................................................xiv
LIST OF ABBREVIATION.................................................................................xv
CHAPTER I. INTRODUCTION ............................................................................ 1
A. Background of Research .............................................................................. 1
B. Research Problems ...................................................................................... 3
C. Objectives of Research ................................................................................. 3
D. Benefits of Research .................................................................................... 3
CHAPTER II. LITERATURE REVIEW ................................................................ 5
A. Review of Consumer Protection .................................................................. 5
ix
B. Overview of Moslem Consumer .................................................................. 7
1.
The Definition of Consumer ..................................................................... 7
2.
The Definition of Moslem Consumer ...................................................... 9
3.
The Right and Obigation of Consumer .................................................... 9
C. The Overview of Businessman or Producer............................................... 12
1.
The Definition of Businessman .............................................................. 12
2.
The Right and Obligation of Businessman............................................. 14
3.
The Responsibility of Businessman. ...................................................... 17
D. The Overview of Halal Product ................................................................. 21
1.
The Definition of Halal .......................................................................... 21
2.
The Definition of Halal Product ............................................................ 22
3. The Halal’s Certification. ......................................................................... 23
4.
The labeling of Halal ............................................................................. 26
E. The Overview of Food Product .................................................................. 29
1.
The Definition of Product....................................................................... 29
2.
The Definition of Food ........................................................................... 29
CHAPTER III.RESEARCH METHODOLOGY ................................................. 31
A. Type and Approach Research .................................................................... 31
B. Legal Materials........................................................................................... 31
C. Method of Collecting Data ......................................................................... 32
x
1.
Literature Review ................................................................................... 32
2.
Interviews ............................................................................................... 33
D. Source Data ................................................................................................ 33
E. Method of Data Analysis ........................................................................... 33
CHAPTER IV FINDING AND ANALYSIS……………………….…………...35
A. Legal Protection For Muslim Consumers ................................................. 35
1.
Based on the law of Consumer Protection ............................................. 35
2.
Regulation of MUI ................................................................................. 37
3.
LPPOM MUI .......................................................................................... 40
4.
Monitoring Mechanism Toward LPPOM MUI on Halal Food Product.41
B. The Responsibility of Businessman Towards the Halal Guarantee of Food
Product…………………………………………………………………………46
1.
The Responsibility of Businessman ...................................................... 46
2.
The Penalties for Businessman............................................................... 47
CHAPTER V.CONCLUSIONS AND SUGGETIONS ........................................ 48
A. Conclusion ................................................................................................. 48
B. Recommendation........................................................................................ 49
BIBLIOGRAPHY ................................................................................................. 50
Book .................................................................................................................. 50
Internet / Website .............................................................................................. 51
xi
Journal ............................................................................................................... 51
Legislation ......................................................................................................... 52
APPENDIXES
xii
LIST OF QURANIC AND HADIST
Surah Al-Baqara No 168 of 286:
“O, Mankind! Eat of whatever is in earth lawful clean and follow not
the steps of the devil, no doubt, he is your open enemy.”.
Hadist Riwayat Muslim No 1015
“O ye who believe, eat of the sustenance of the good that we
have given you”. Then he pointed out a man, he had a long journey, her
hair tousled and dusty, he lifted his hands to the sky: “Yaa Rabbi! Yaa
Rabbi!” While he was eating unclean foods, clothes that he wears are
haraam , and he drank from forbidden beverages, and grew up on the
things that are forbidden , how it might be received his pray". (HR
Muslim no. 1015)
xiii
LIST OF STATUTES
The Government Regulation No.69 of 1999 on Label and Food Advertisement
The Decree of Minster of Religious Affairs (MA) No 518 on Guideline and
Procedure
Legislation No.8 of 1999 on Consumer Protection
Halal Food Examination and Determination, SK MA No 519 on Institute of
Implementation of Halal Food Inspection, ACT No.7 0f 1996 on Foods.
LIST OF ABBREVIATIONS
LPPOM
: The Institute for Supervision of Food, Drug, and Cosmetics
xiv
BPPOM
: Supervision body for food, Drug and Cosmetics
MUI
: Indonesia Ulama Council
xv
ABSTRACT
Moslem consumer protection becomes important in Indonesia. The most of
Indonesian’s consumers are Moslem, So many Product with unlabeled halal
make the Moslem consume difficult in determining the product consumed
whether it is halal or not. Based on the data of Research Institute for Foods,
Drugs and Cosmetics (LPPOM MUI) in 2014 there were so many products
without halal label. This research is a normative legal research and a library
research which applies statute and conceptual approaches. The data gathered
from the review of the literature or library materials related to the problem
or research materials that comprises of a premier law, secondary and
tertiary. The research found that Indonesian’s Moslem consumer should get
the rights and get more protection against the assurance halal of food
product as defined in the Law No. 8 of 1999. Meanwhile, The Responsibility
of businessman on the product, can be found in Article 19 Paragraph (1)
and (5) as well as Article 28 of Law No. 8 in 1999 on Consumer Protection.
For those who want to make the certificate halal label in their products, the
costumer should have to follow some processes or stages to obtain the halal
certificate issued by the MUI. The responsibility for businessman who was
tagging without procedure in halal labels could be deemed in the provisions
of the legislation included in Law No. 8 of 1999 on Consumer Protection,
Act No. 7 of 1996 on Food and The Government Regulation No. 69 of 1999
on food label and advertisement.
Keywords: Legal Protection, Muslim Consumer, Halal Product, Indonesia
xiii
1
CHAPTER I
INTRODUCTION
A. Background of Research
Nowadays, halal label is being mandatory requirement for
Moslem, either for
foods or medicines even everything that can be
consumed or used as well as the magnitude of the quantity needs of
Moslem in Indonesia which amounted to 88,20% from 252 Million.1
Moslem consumer protection becomes important in Indonesia,
because most of Indonesian’s consumers are Moslem. Therefore,
Moslem’s consumers have to get protection of good and service whether
foods or medicines in accordance with sharia. In the other hand, the
government must protect Moslem consumers in Indonesia.2
There are so many products with unlabeled halal made moslem
consumer difficult in determining the product consumed whether it is halal
or haram. Based on the data of Research Institute for Foods, Drugs and
Cosmetics (LPPOM MUI) in 2014 there were so many products without
the label halal.
In fact, the majority of imported food product in the market has no
label of halal and it was very often happened that moslem consumer
become the victim of unfair trade practiced by any variation good and
1
Agatha Uni Asmarani, 2010, Berapa Jumlah Penduduk Indonesia, Media
Kencana, Jakarta, page.5
2
Zulham, 2013, Hukum Perlindungan Konsumen, Kencana Pranada Media
Group, Jakarta, page.10
2
service offered. It is proven by the large number of finding product using
harmful substances in term of its process or purpose. The case of
Ajinomoto in 2001, for example, the consumers were confused after the
government through Indonesian Ulama Council (MUI) declared that there
was an element of pork enzymes in Ajinomoto. MUI recommended the
public not to consume Ajinomoto. As the results, Ajinomoto in Indonesia
withdrew its product from all over in Indonesia. Upon the spread of the
news, it made the market of Ajinomoto in Japanese also has decreased
radically. It means the news about its abolishing has negative effect to its
market in other countries.
This condition makes Moslem’s community began to take notice of
legal certainty to guarantee halal label in every food product to be
consumed. In this case, it makes moslem consumers more selective in
choosing food product. As the consequences, those imported foods and
products without halal label are becoming more abandoned than halal
one.3
Those phenomena has lead to the attention of the researcher to
conduct further study regarding “Legal Protection for Moslem Consumers
on Halal Guarantee of Food Products in Indonesia”.
3
Anonim, 2002, Makalah Label Halal, Yayasan Lembaga Konsumen Indonesia,
Jakarta, page.1
3
B. Research Problems
Considering the research background above, the writer states two
questions to be answered, they are:
1. How does legal protection for Moslem consumers on halal
guarantee of food products in Indonesia?
2. What are the responsibilities of businessmen to ensure guarantee
labeling of halal product?
C. Research Objectives:
1. To find out the regulation and legal protection for Moslem
consumers on halal guarantee of food products in Indonesia.
2. To find out the responsibilities of businessmen in ensuring
guarantee of halal food products traded in Indonesia.
D. Research Benefits
This research scientifically and practically has the benefit as follows:
1. The Scientific Aspect.
This research is expected to provide brainstorming ideas for the legal
protection of Moslem consumers on halal guarantee of food products
traded in Indonesia and gives some benefits especially to the
government and the moslem in minimizing the impacts of non-halal
products.
4
2. Practical Aspect.
This research is hoped to provide practical guidelines for Moslem
consumer in consuming food products in Indonesia
5
CHAPTER II
LITERATURE REVIEW
A. Review of Consumer Protection
The definition of consumer protection is stated in Law Number 8 of
1999 Article 1 paragraph 1. It states that consumer protection is all efforts
that guarantee the legal certainty to provide protection to the consumer
(Article 1, point 1).
The formulation in terms of consumer protection contained in article 1
point 1 of the consumer protection act is sufficient. The sentence which
stated that “any measure that guarantees the legal certainty” is expected as a
fortress to abolish the arbitrary action that could harm the interests of
business to consumer protection.1
There are some legal certainties in providing protection to the
consumers, such as improving the dignity and value of consumers, opening
the access of information about the goods and services and cultivating the
attitude of honest and responsibility to the businesses.2
Ali Mansyur further explains that consumer protections are divided
into five types. They are:
1
Ahamdi Miru dan Sutarman Yodo, 2010, Hukum Perlindungan Konsumen,
Rajawali Pers, Jakarta, page.1
2
Adrian Sutedi, 2008, Tanggung Jawab Produk Dalam Perlindungan
Konsumen, Ghalia Indonesia, Bogor, page.9
6
1. Physical Protection. It is related to the safety and security of soul and
body in using or consuming goods or services.
2. Social and Environmental Protection. It is to obtain information about a
product correctly, and to gain optimal results from the use of goods or
services, otherwise there will be problems of consumers to unsafe
products, in order to avoid consumer problems in consuming unsafe
product.
3. Economic Protection. The protection for the consumer when businesses
commit fraud in order to get the benefit as much as possible in cunning
way and without thinking about the products they produced.
4. Law Protection. The protection towards justice from consumer, and
they have right to be protected from the adverse treatment businesses.
5. Moral Protection. The protection in which consumers must be protected
their spirits and physics. So that it can produce good behaviors among
them.
The goals to be achieved in consumer protection can be divided into three
parts:3
1.
Empowering consumers by selecting, specifying the goods or
services according to their needs, and demanding their rights and
obligations.
2.
Creating a consumer protection system consisted of legal certainty
elements, transparency of information, and access to information.
3
Adrian Sutedi, Ibid, page 9
7
3.
Raising the awareness of businesses about consumer protection so
as to foster honesty and responsibility.
B. Overview of Moslem Consumer
1. The definition of Consumer
The term of konsumen in bahasa is derived from the word
consumer (British-America) or consument (Netherland). Literally,
consumer is the opposite of producer or everyone who uses the good.4 In
general, consumer refers to an end-user of product submitted by
businesses; everyone who acquire goods or services to be used and not for
trading or traded again.5
According to the Consumer Protection Regulations Article 1
paragraph 2 of Law No. 8 of 1999, the definition of consumer is every user
of goods or services provided in the community, either for their own, their
family, other people and other living being and not to be traded.
The expert of consumer problems in the Netherlands, Hondius
concludes that generally jurists agreed to define consumers as users of
final production of goods and services. By its formula, Hondius wants to
4
Celina Tri Siwi Krisyanti, 2009, Hukum Perlindungan Konsumen, Sinar
Grafika, Jakarta, page.22
5
Janus Sidabalok, 2010, Hukum Perlindungan Konsumen di Indonesia, Citra
Aditya Bakti, Bandung, page.17
8
compare between the consumer and end-user consumer. There are three
concepts of consumer’s definition; they are:6
a. Commercial. The user of goods and services or beneficiaries of goods
or services with a specific purpose.
b. Intermediary consumer. The user of goods and services or
beneficiaries of goods to be produced (producer) and traded
(distributor) with a specific objective.
c. End user. The user of goods and services or beneficiaries of goods and
services to require their own needs, their family or household but that
are not to be traded back.
In consumer’s opinion, a good and service are capital such as raw
material, adjuvant, or other product’s component produced. The
intermediary consumers get the goods or services in the marketplace
producer. Looking at the nature of the used of goods or services, the
consumers are actually businessmen both individuals and legal entities,
whether they are private or public, even providers of funds (investor),
maker of the final product used by end consumers or producers or
providers or seller of end products such as suppliers, distributors, sellers or
traders. Meanwhile, the final consumer was the consumers who are usually
used to meet the needs of personal, family, or household (consumer
products). The goods or services of consumer are generally obtained in the
6
Az Nasution, 1999, Hukum Perlindungan Konsumen Suatu Pengantar, Daya
Widya, Jakarta , page.13
9
consumer markets.7 The value of the goods or services used by consumers
in their daily lives were not measured on the basis of profit and loss
economically, but it needs to fulfill the life’s needed of consumer.8
2. The Definition of Moslem Consumer
The Moslems consumer is a Moslem who creates his daily
needed both material and spiritual. When moslems consumer got their
regular income weekly, monthly or annually, they never thought that
all of their incomes are theirs but in their money there is the right of
Allah. So that they live to seek the pleasure of Allah and part of their
income is spent in the way of Allah (Fisabilillah).9
3. The Right and Obligation of Consumer
The entire Islamic teachings related to the trade and
economics is oriented to the protection and rights of businessmen,
producers and consumers. Because Islam is taught and required the
existence of an element of fairness, honesty and transparency, the
moslems then conduct their activities on the basis of Islamic faith
either in practical of the trade or transfer of rights. Related to
consumer rights, Islam provides a space for consumers and producers
to defend their rights in a trade which is divided into several kinds as
follows:
7
Celina Tri Siwi Kritiyanti, 2009, Hukum Perlindungan Konsumen, Sinar Grafika,
Jakarta, page.25
8
Celina Tri Siwi Kritiyanti, Ibid, page.51
9
Zainuddin, 2009, Kebijakan konsumen,
http://zainuddion.blogspot.com/2009/09/kebijakan-konsumen.html, accessed on October 10, 2015,
at 12.00
.
10
a. The Right to Choose The Agreement in The Majelis (Khiyar
Majelis)
As-Sunah is established when both parties who made transaction or
withdrew a contract as long as they are still in the majelis. Khiyar
is the rights assigned for businessmen and consumers in the event
of consent and granted between a producer and consumer. When
akad has been done, then each party has the right to maintain or
cancel the contract as long as they are still in the majelis .
b. The Right to Vote Based on Requirement (Khiyar Syarat)
Khiyar Syarat is one of the parties who bought something with the
provisions (Khiyar) within a clear period. During its period, the
client could quash that transaction. In this case, khiyar syarat is
allowed for one or both parties who made the deal together.
c.
The Right to Guarantee The Product (Khiyar Aibi)
It is Haram for everyone who sells goods that have defects
(defective products) without explaining to the buyer (consumer). If
it is happened, the buyer has option to cancel or to precede the
contract.10
In addition to the Islamic Perspective there are also the rights
of consumers according to the Consumer Protection Act stated in
Article 4 Law’s Protection No. 8 in 1999. It mentions that among the
right of consumers are:
10
Yusuf As-Sabatin, 2009, Bisnis Islam dan Kritik atas Praktik Bisnis Ala
Kapitalis, Al- Azhar Press, Bogor, page.308
11
a. The right to comfort, security and safety in consuming of goods or
services.
b. The right to choose goods, services and obtain goods and services
in accordance with the exchange rate, conditions and guarantees.
c. The right to get the correct, clear and true information about the
condition and the guarantee of goods or services.
d. The right to complaints on goods and services used.
e. The right to receive the guidance and consumer’s education.
There are some formulas concerning consumer rights which are
pointed broadly. They can be divided into three rights that become
basic principles, namely:11
a. The rights to prevent consumers from harm.
b. The right to acquire goods or services with proper price
c. The right to obtain solving problem solution.
Therefore, those three basic principles of its right is an
assemblage of multiple consumers’ rights as regulated in consumer’s
protection Act; then it is very essential for consumers. So it can be
used as the basic principles of consumer protection in Indonesia.
Besides, the consumers also have obligations which have been
regulated in Article 7 of the Consumer Protection Act. Some of them
are:
11
Ahmadi Miru dan Sutarman Yodo, Ibid, page 47
12
a. Making purchase of goods and services in the right way.
b. The Payment is made by the agreed of exchange rate.
c. Take a part of the efforts in resolving the legal dispute over
consumer protection.
Good behavior of consumers is focused only on purchasing of
goods or services. It is caused by the right time to the detriment of
producers when dealing (making transaction) with producers
(businesses).12
C. The Overview of Businessman or Producer.
1. The Definition of Businessman
The term produsen has Dutch origin which means producent, and
producer in English which means producer.13 Producer is often interpreted as
businessman who produces goods or services or it could be categorized as
manufacturer, wholesaler, professional retailer that is any person or
participating companies in providing goods or services to consumers. Thus,
producers are not only interpreted as the manufacturer or enterprise which
produced the product but also those who associated with the delivery or
distribution of product to the consumer.14
Based on the Consumer Protection Act, the term of producer is called
as businessman. Article 3 paragraph 1 defines that businessman is an
12
Ahmadi Miru dan Sutarman Yodo, Ibid, page.50
N.H.T. Siahaan, 2010, Hukum Perlindungan Konsumen dan Tanggung Jawab
produk, Panta Rei, Jakarta, page.28
14
Janus Sidabalok, 2010, Hukum Perlindungan Konsumen di Indonesia, Citra:
Aditya Bakti, Bandung, page.16
13
13
individual or enterprise, whether it is a legal entity or not which is established,
domiciled or conducting activities within the jurisdiction of the Republic of
Indonesia, either individually or jointly with the agreement of business
activities in various economic fields.
The explanation of the Consumer Protection Act has categorized
businessman as companies, corporations, state enterprises (BUMN),
cooperatives, importers, traders, distributors, and others. 15 Those definitions
will allow consumers to demand compensation so that consumers are not
difficult to sue the defendant parties. It would be even better if the Consumer
Protection Act provide details as stated in the Article 3:16
a. The producer means the maker of the finished product, any raw
material, or a spare parts maker and everyone who put the name, brand
or any other sign of distinction on the product, making himself as
producer.
b. Anyone who imported, or leased a product or any kind of distributions
of goods. In European setting, it is interpreted as manufacturer and
responsible as a producer.
c. If a product identity is unknown, then each supplier will be responsible
as a producer, unless he shall notify the person who suffered the loss in
a short time concerns on the identity of the manufacturer or the person
submitting the product to him. The same case is also happened to the
15
Celina Tri Siwi Kristiyanti, Ibid, page.41
Ahmadi Miru dan Sutarman Yodo, 2010, Hukum Perlindungan Konsumen,
Rajawali Pers, Jakarta, page.9
16
14
imported product as example if the product does not indicate the
identity of import as intended in paragraph 2, the term of businessman
is a term used by lawmakers who are generally better known as
entrepreneurs.
Indonesian Economists Association (ISEI) mentioned four major
groups among economic players; three of them are included into the groups of
employers (businesses, both private and public) while the last groups are:17
a.
The Investor. The provider of funding for various purposes, such as
banking, leasing, brokers, other fund providers, etc.
b.
The Manufacturer. The businessman who creates and produces
goods or services of goods and other services. (Such as raw
materials, additives and other materials).
c.
The Distributor. The businessman are those who distributes or trades
in goods or services to the public, such as merchants in retail, street
vendors, cafes, shops, supermarket, hypermart, hospitals, clinics,
stalls doctors, public transportation, law firms, etc.
1. The Right and Obligation of Businessman.
The Article 6 of the Law of Consumer Protection prescribes that
the businessman has the following rights:
a.
The right to receive payment according to the agreement
concerning the conditions and exchange of goods or services
traded;
17
Adrian Sutedi, 2008, Tanggung Jawab Produk Dalam Perlindungan
Konsumen, Ghalia Indonesia, Bogor, page.11
15
b.
The right to get legal protection;
c.
The right to self-defense in a completion of law of consumer
disputes;
d.
The right to legal rehabilitation if it is proved that the consumer
loss is not caused by the goods or services traded; and
e.
The rights regulated in the provisions of other legislation.
The Rights of businessman in accepting the payment according to
the conditions and exchange of goods or services traded showed that the
businessman cannot demand a lot more about the condition of the goods or
services that were inadequate according to the prevailing prices on the
same goods provided to consumers. In common case, when a good or
service which quality is lower than similar goods, the parties then agree on
the price of goods at lower prices.18
The Law of Consumer Protection regulates both rights and
obligations of businessman. Based on the Article 7 of Law of Consumer
Protection, the obligations of businessman are:
a.
Every business activity should be done in a good procedure.
b.
Giving true and clear information about the condition of the
goods, services or foods and providing an explanation for the
use of repair and maintenance.
18
Ahmadi Miru dan Sutarman Yodo, 2010, Hukum Perlindungan Konsumen,
Rajawali Pers, Jakarta, page.51
16
c.
Treating or serving the customers properly and honestly and
indiscrimination.
d.
Giving a Guarantee of the quality of goods and services
produced or traded based on the provisions of the standard of
quality of goods or services.
e.
Allowing the consumers to test and try the products and
services as well as provide insurance of goods or services to
be traded.
f.
Providing the compensation for any loss or change as a result
of the use, consumption and utilization of goods or services
traded.
The Law of Consumer Protection obligated to all businessmen to
conduct activities in good procedure and also consumers are required to
make the purchasing of goods and services in the same way.19
In the Consumer Protection Act, it appears that good faith is better
emphasis on businessman because it covers all stages in performing their
business activities so it can be interpreted that the obligation of
businesses to behave properly begins when the goods are designed or
produced to the sales stage. Conversely, consumers are only required to
behave well in making purchases of goods or services. This is due to the
possibility of harm to consumers starting from goods produced by
19
Ahamdi Miru dan Sutarman Yodo, Op.Cit, page.54
17
businesses for consumers; it is likely to be detrimental to the producers at
the time of the transaction by the manufacturer.20
2. The Responsibility of Businessman.
According to Zulham in his book entitled “The Law of Consumer
Protection” a businessman has three principles of responsibility. They
are:21
a. Fault liability. The responsibility which requires the element of fault.
The Concept is known as defined in the provisions of Article 1365 of
the Civil Law that is act against the law. The Article 1365 of the Civil
Law stated that “Every legal violation, which causes harm to others,
requiring an offender to replace such losses”. In other words, act
against the law based on the Article 1365 of Civil Law requires the
plaintiff to prove the existence of an element of fault.
b.
Contractual liability.
The civil liability on the basis of agreement or contract of
businessman both goods and services over the losses suffered by
consumers due to the consumption of goods produced or utilize the
services rendered. It means that there is a contractual agreement or
direct contract between businessmen with consumers. In the
agreements or contracts between businessmen and consumers always
use the raw standard agreement provided by businessman. Since the
20
Ahamdi Miru dan Sutarman Yodo, Ibid, page.54
Zulham. 2013, Hukum Perlindungan Konsumen, Kencana Pranada Media
Group, Jakarta, page.83
21
18
raw contents of the contract have been set unilaterally by
businessman, the general contents of the standard contract will be
more load businessman rights and obligations of the consumer,
rather than the rights of consumers in the obligations of businessman.
This kind of provisions in standard contracts is called as clause,
which generally burdensome or even tends to burden consumers. The
prohibition inclusion of standard clauses in the standard agreement is
intended to give consumers the position equivalent to businessman
that based on the principles of freedom of contract.
In Article 18 the Law of Consumer Protection stated that the
supply of goods or services are intended for trade; the businessman is
prohibited to create the standard clause in any document or
agreements.
1) Stating the transition of businessman responsibilities
(goods or services)
2) Stating that business has the right to refuse the return of
goods purchased by consumers.
3) Stating that the businessman has the right to refuse the
money paid of goods or services bought by consumer.
4) Declaring that the granting of authorization from
consumers to businessman, either directly or indirectly
to any unilateral action relating to goods purchased by
19
consumers who become the object of buying and
selling.
If a product is defect and has caused the loss, the consumers
should see the content of the contract, both written and unwritten.
This theory belongs to strict obligation, in which liabilities that
are not based on the efforts but they are made by manufacturers.
It means that although the producers have attempted responsible
for damages, the consumers remain suffered losses. Besides, the
weakness of this theory in legal protection for the interests of
consumers are the time restrictions of lawsuit, notification
requirements, the possibility of denial (disclaimer), and the terms
of contractual relations.
c. The Strict Liability
Strict liability is the principle of responsibility that sets the
error is not as decisive factors. However, there are exceptions
that allow exempting from responsibility, such as force
majeure.
In Black’s Law Dictionary, strict liability means “Liability
that does not depend on actual negligence or intent to harm, but
that is based on the breach of an absolute duty to make
something safe. Strict liability most often applies either to ultra
hazardous activities or in products liability cases”.
20
Generally, the legal relationship between producers and
consumers is the ongoing relationships and sustainable because
both of them want and have a fairly high level of dependence.
The correlation occurred since the process of production, distribution,
marketing and supply until the result of consuming its products. Whereas, based
on Article 19 of Law Consumer Protection, the businessmen have responsibilities.
The responsibilities of businessmen are as follows:
1) The Businessmen are responsible for compensating for damage, pollution
or consumer losses due to consumption of goods or services produced or
traded.
2) The Compensation as described in paragraph 1 can be either a refund or
replacement of goods or services similar or equivalent value, or health
care or giving compensation in accordance with the provisions of the
legislation.
3) Providing compensation implemented within a period of 7 days after the
transaction date.
4) Giving Granting of the indemnity as defined in paragraph 1 and paragraph
2 did not eliminate the possibility of criminal charges based on further
evidence regarding the existence of an element of error.
21
Based on the explanation of Article 19 paragraph 1 it can be seen that the
responsibilities of businessman are:22
a) The responsibility of compensation for damage
b) The Responsibility for pollution
c) The Responsibility for consumer loss
In this case, the defective goods and products do not constitute the sole
basis for the accountability of businessman. It means that the responsibility of
businessman is covering any losses happened by consumers.23
D. The Overview of Halal Product
1. The Definition of Halal
The term halal in Qur’an means food and beverages that are
consumed everyday should have been assigned by regulations relating
to the consumption of food and drink.24 The halal food for moslems is
a sharia that must be obey as affirmed in the Holly Qur'an:
Surah Al-Baqara : Verse No 168 of 286:
22
Ahmadi Miru dan Sutarman Yodo, 2010, Hukum Perlindungan konsumen,
Rajawali Pers, Jakarta, page.126
23
Ahamdi Miru dan Sutarman Yodo, Ibid, page.126
24
Anonim, 2003, Modul Pelatihan Auditor Internal Halal, Direktorat Jenderal
Bimbingan Masyarakat Islam dan Penyelenggaraan Haji, Jakarta.
22
“O, Mankind! Eat of whatever is in earth lawful clean and follow not
the steps of the devil, no doubt, he is your open enemy.”.
The hidden message of the verse above can be interpreted that
Allah ordered man to eat anything in this world created by Him, along
the boundaries of the lawful and good. Allah also commanded people
to be careful in choosing foods that are good for health and spiritual.
2. The Definition of Halal Product
Based on the Article 1 paragraph 5 of Government Regulation
No. 69 of 1999 on food labels and advertisements, Halal products are
food products that do not contain ingredients that are prohibited for
consumption by moslem; both raw materials and additives are
processed through a process genetics and irritation of food, and its
management is done in accordance with Islamic.
It means a product that qualified in accordance with Islamic
Shari'a and its food products are permitted for a Muslim to be
consumed.
These are the characteristic of halal food product:25
a.
Does not contain pork ingredients.
b.
Does not contain other ingredients that are forbidden or
classified as unclean as: carcasses, substances derived from
human organs, blood and etc.
25
Departemen Agama RI, 2008, Panduan Sertifikat Halal, Directorate General
Bimbingan Masyarakat Islam dan Penyelenggara Haji, Jakarta
23
c.
Does not affect the function of normal physical and mental.
d.
Free from najis (filth) and the product is not derived from
animal carcasses and dead because it is not slaughtered or
hunted.
e.
All the animal ingredients should be original and
slaughtered based on Islamic sharia’s procedures.
f.
Does not contain wine, alcohol, and etc.
3. The Halal Certification.
The halal certificate is a MUI’s fatwa that stated that the product has
been in accordance with Islamic Shari'a. The halal certificate is a requirement
for obtaining the labeling of halal on the packaging of the product from
government authorities.26
Based on Article 1 Letter d, The Religion Ministerial Decree No. 518
of 2001 concerning on the Guidelines and Procedures for Examination and
Determination state that the “Halal certification is a written fatwa and claim of
halal food product and it is issued by examiner agency having authority
against the product”
According to the General Guidelines for Halal Assurance System LPPOM
MUI, halal certification is a process for obtaining a halal certificate through
several steps to prove that the material production and Guarantee Process System
fulfilled the standard of LPPOM MUI.
26
Aisyah Girindra, 2005, Pengukir Sejarah Sertifikat Halal, LP POM MUI,
Jakarta, page 15
24
Picture of 1. The Halal Certification
The Halal certificate is given in order to provide certainty on the
status of a product, such as in food products, medicines and cosmetics
that are safe for consumption. Besides, it can prevent the occurrence of
irregularities halal status of products produced by manufacturer. There
are some procedures should be followed by businessman in getting
halal certification, they are: 27
a. Every businessman who applies the halal certification for its
products must fill out the form that has been provided and attach
following data:
27
Anonim, 2002, Pedoman Untuk Memperoleh Sertifikat Halal, LPPOM MUI,
Jakarta, page.3
25
1) Specifications and Certification of raw materials,
additives or auxiliary materials.
2) The Halal Certification for both local and imported
products. Islamic institution that has been recognized by
MUI (imported product).
3) The halal assurance system described in the guide as
well as the halal standard procedures implementation.
b. The Auditor Team of LPPOM MUI conduct investigation into the
company's location businesses, after the form and its annexes
submitted and examined completeness by them.
c. The results of the examination and laboratory findings were
evaluated in the meeting of experts in LPPOM MUI, if the
requirements have been fulfilled then the auditor made a report and
submitted to the commission meeting to be assigned as Halal status
of MUI.
d. MUI can refuse the examination report, if it is not considered to
meet all the requirements that have been determined.
e. The Halal certification issued by MUI after undergoing several
stages of the examination process.
26
Picture of 2. The requirements of halal certificate
3. The labeling of Halal
The Government Regulation No. 69 of 1999 concerning on food labeling
and advertising halal mentions that every description of food in form of
pictures, writings and a combination of both or other items / ingredients
that included in food, affixed to, or a part of food packaging. Halal label
is a label of food packaging which indicates that the product has been
considered after undergoing several stages of the examination process.
27
Based on the c Government Regulation No. 69 Article 10, any
person who produces or puts the packaged food to be traded in Indonesian
territory and stated that the food is permitted for Moslems are responsible
for the correctness of the statement and should give a description or word
‘halal’ in its package.
Picture of 3. The Official Halal Label of MUI
Source: www.halalmui.org
The Article 11 is described for supporting a lawful statement as
defined in Article 10 that any person who produces or distributes
packaged food to be traded into Indonesian territory must be audited by
an institution that has been established by the provisions of the legislation
because there were many products, especially food products using
unofficial halal label or logo in their packaging. Therefore, moslems
should beware of the false label created by unscrupulous employers to
attract moslem consumers due to confusion regarding regulations. .
These are the types of counterfeit products circulating in the halal
community. Below are the examples of unofficial halal logo with no halal
assurance from government.
28
Picture of 4. The Fake Halal Label
Source: www.halalmui.org
From the above explanation it can be concluded that the labeling
of halal is the word halal both in Latin and Arabic letters affixed on the
packaging of food, drinks and medicines or cosmetics on the approval of
the Ministry of Health which previously have obtained halal certificates
in advance of the Indonesian Ulama Council (MUI).
The labeling of Halal on the food and drink will indicate to the
consumers that both products have been examined and guaranteed by
authorized institution.28
In Article 3 Paragraph (2) of Government Regulation No. 69 of 1999
concerning the labeling and advertising of food explained that the label of
food is at least containing the following details:
a. The name and address of the party who produces or put their hands
into the Indonesian territory.
b. The Date, month and expired.
c. The list of ingredient used
d. The net weight or net contents
28
Medan.
Bisma, 2010, Sertifikat Halal dan Cara Memperolehnya, Law Faculty of USU
29
e. The labeling of Halal.
E. The Overview of Food Product
1. The Definition of Product
The product is something that is negotiated with the aim to benefit from
the creativity of a person, or a company’s marketing team. Kotler and
Amstrong defined that product is everything that can be offered to the
market to satisfy a desire needs such as physical goods, services, property,
places and people.29
Kotler states that the product is everything that can be offered to the
market and can fulfill the need of daily life. By its definition, researcher
can conclude that the product means of satisfying the needs and wants of
consumer offered by company with purpose to fulfill the needs of
consumer.
2. The Definition of Food
Etymologically, makan means consume something through the mouth
and makanan is anything that can be eaten. 30 Meanwhile, In Arabic,
makanan is derived from the word at-Taam and plural al at 'imah which
means foods.31 Meanwhile, based on the encyclopedia of Islamic law, food
29
Philip Kotler, 2012, Manajemen Pemasaran, page.183
Anonim, 1983, Proyek Pembinaan Prasarana dan Sarana Perguruan Tinggi
Agama IAIN, Ilmu Fiqh dan Hukum Islam, Directorate of Islamic Religion, Jakarta,
page.525
31
Ali Mutahar, 2005, Kamus Arab Indonesia, Hikmah, Jakarta, page.130
30
30
is anything that can be eaten by humans or something that could eliminate
hunger.32
Based on Law No. 7 in 1999 concerning on Food stated that everything
coming from biological sources and water, whether treated or untreated,
which are not intended as food and beverage for human consumption,
including food additives, raw materials and other ingredients are used in
the preparation, processing, and producing of food.
32
Abdul Azis Dahlan, 1996, Ensiklopedia Hukum Islam, Ikhtiar Baruvan Hoeve,
Jakarta, page.1071
31
CHAPTER III
RESEARCH METHODS
A. Type and Approach Research
This research is a normative legal research or a library research.
Normative legal research is the study of law that put down the law as the
building a system of norms, such as principles, norms of legislation, court
decisions, agreements and doctrines (teachings) of which related to the
protection of Moslem consumers to guarantee halal products in Indonesia.
The researcher used several approaches within normative law, they are:
1
Statute approach. It is an approach made to various laws or regulations
relating to the protection of Moslem consumers to guarantee foreign halal
food products in Indonesia.
2
Conceptual Approach. It is an approach by examining the progress views
and doctrines to understand the concepts.
In this method, the researcher tried to find out data through literature
review on the rule of law related literature and interviews with informants,
they are: LPPOM MUI, BPPOM and government or related agencies.
B. Legal Materials
The data used in this research is secondary data obtained from the
study of literature or the review of the literature or library materials related to
32
the problem or research materials that comprise a premier law, secondary and
tertiary. This study used the following legal materials:
1
Primary legal materials, it consists of jurisprudence legislation on court
decisions and international agreements. The primary legal materials are in
the form of legislations related to legal protection of consumers on food
products labeled halal in Indonesia, such as : Law of Consumer Protection
No. 8 of 1999, Act No. 7 of 1996 on Food, the Minister of Religious
Affairs (MA) No. 518 on Guidelines and Procedures for Examination and
Determination of Halal Food, Government Regulation No. 69 of 1999 on
Labels and Advertising food and other regulations related to the research.
2
A secondary legal material is a legal substance which could provide an
explanation for the primer law. The secondary law can be in the form of
books, journals, research results related to legal protection of consumers
on food products labeled halal in Indonesia.
3
A tertiary legal material is a legal substance that supports the primary and
secondary legal materials to provide insight and understanding of other
legal materials.
C. Method of Collecting Data
The analysis of the data is done in these following procedures:
1. Literature Review
Literature review is a study of literature, scientific journal, and applicable
laws and regulations that are relevant to the issues being investigated.
33
2. Interviews
Interviews are held a question and answer directly to the informant who
linked on Protection against collateral Muslim consumers of halal
OF FOOD PRODUCTS IN INDONESIA
UNDERGRADUATE THESIS
This undergraduate thesis is submitted as one of the requirements to obtain the Degree of Bachelor of
Laws at Faculty of Law Universitas Muhammadiyah Yogyakarta
By:
Name
: Redhita Febri Athifah
Student Number
: 20120610337
Faculty
: Law
Major
: International Program for Law and Sharia
Field of Study
: Commercial Law
FACULTY OF LAW
UNIVERSITAS MUHAMMADIYAH YOGYAKARTA
2016
MOTTOS PAGE
Surah Al-Mujadalah verse 11:
O you who have believed, when you are told, "Space yourselves" in
assemblies, then make space; Allah will make space for you. And when you are
told, "Arise," then arise; Allah will raise those who have believed among you and
those who were given knowledge, by degrees. And Allah is Acquainted with what
you do. (QS.Al-Mujadalah:11)
Surah Ar - Ra’ad
For each one are successive [angels] before and behind him who protect him
by the decree of Allah . Indeed, Allah will not change the condition of a people until
they change what is in themselves. And when Allah intends for a people ill, there
is no repelling it. And there is not for them besides Him any patron. (QS. Ar - Ra’d):
i
DEDICATIONS
This Undergraduate Thesis is dedicated to: My Lord, Allah SWT
Prophet Muhammad SAW
My super Dad, Bapak Sarwan Anthoni
My Mom, Ibu Jamilah Hadi
My beloved Brother
My beloved Sister
All of My families
My Lecturers:
Ibu Dewi Nurul Musjtari, SH., M.Hum
Bapak Dr. H. Muchammad Ichsan., Lc., MA
Bapak Nasrullah, H., S.H., S.Ag., MCL.
My best patner in batch 2012, IPOLIANS
All My Friends at Fakultas Hukum UMY
ii
FOREWORD
Alhamdulillah thanks all praises and gratitudes to Allah without His
blessing and mercy this thesis “LEGAL PROTECTION FOR MOSLEM
CONSUMERS ON HALAL GUARANTEE OF FOOD PRODUCTS IN
INDONESIA will not come to its final format. During the process of thesis writing,
the researcher was assisted, guided, and helped by many people.
Firstly, my deepest gratitude goes to my beloved parents Bapak Sarwan
Anthoni dan Ibu Jamilah Hadi for their advises, supports, encouragements and
prayers for me to complete this thesis; To all my sisters Revty Amelia, Reidhati
Dayang Fadhilah and my Brother Redho Wahyu Akbar, I address my appreciation
for their love and attention.
Then I am most thankful to my advisors Ibu Dewi Nurul Musjtari, SH.,
M.Humas and Bapak Dr. Muchammad Ichsan., Lc., MA, who have given me
guidance, direction, and suggestion with sincerity and patience during the
accomplishment of my thesis. May Allah SWT always give the reward for all of
your good deeds to me.
I am also very indebted to Gaidar Kenny Marcapada, brother Hary Abdul
Hakim, Dita Adilla, Agistha and my beloved brother Ludmi Andevy for supports,
motivations, encouragements and prayers. To my teammates in KKN 03-04, Ipols
2012, Smafa, Ipry-kkp, Fakultas Hukum and Shofia Chairunnisa, Savira
Rahmawati, Najla Asyifa, Marlya Meong, Fifi, Widya Annisa, Jamilah, Riva
Hazmar, Bella, Mella, Cahyaning Putri, Ayu Dyah Ratna, Mutia Melinda, Annisa
Dwi Saputri, Siti Aulia, Isna and others, I addressed my cordial thanks.
iii
I realize that this thesis is far from being perfect. Thus, I welcome any
supportive criticism or suggestion to make it better. Finally, I hope this paper is
useful for all.
Yogyakarta, April 2016
(Redhita Febri Athifah )
iv
TABLE OF CONTENTS
ABSTRACT ............................................................................................................. i
APPROVAL PAGE.................................................................................................ii
ENDORSEMENT PAGE ...................................... Error! Bookmark not defined.
DECLARATION PAGE ........................................ Error! Bookmark not defined.
MOTTOS PAGE…………..……………………………..………………………..v
DEDICATION ........................................................................................................ ii
FOREWORD ......................................................................................................... iii
TABLE OF CONTENTS........................................................................................ix
LIST OF QURANIC AND HADIST ................................................................... xiii
LIST OF STATUTES...........................................................................................xiv
LIST OF ABBREVIATION.................................................................................xv
CHAPTER I. INTRODUCTION ............................................................................ 1
A. Background of Research .............................................................................. 1
B. Research Problems ...................................................................................... 3
C. Objectives of Research ................................................................................. 3
D. Benefits of Research .................................................................................... 3
CHAPTER II. LITERATURE REVIEW ................................................................ 5
A. Review of Consumer Protection .................................................................. 5
ix
B. Overview of Moslem Consumer .................................................................. 7
1.
The Definition of Consumer ..................................................................... 7
2.
The Definition of Moslem Consumer ...................................................... 9
3.
The Right and Obigation of Consumer .................................................... 9
C. The Overview of Businessman or Producer............................................... 12
1.
The Definition of Businessman .............................................................. 12
2.
The Right and Obligation of Businessman............................................. 14
3.
The Responsibility of Businessman. ...................................................... 17
D. The Overview of Halal Product ................................................................. 21
1.
The Definition of Halal .......................................................................... 21
2.
The Definition of Halal Product ............................................................ 22
3. The Halal’s Certification. ......................................................................... 23
4.
The labeling of Halal ............................................................................. 26
E. The Overview of Food Product .................................................................. 29
1.
The Definition of Product....................................................................... 29
2.
The Definition of Food ........................................................................... 29
CHAPTER III.RESEARCH METHODOLOGY ................................................. 31
A. Type and Approach Research .................................................................... 31
B. Legal Materials........................................................................................... 31
C. Method of Collecting Data ......................................................................... 32
x
1.
Literature Review ................................................................................... 32
2.
Interviews ............................................................................................... 33
D. Source Data ................................................................................................ 33
E. Method of Data Analysis ........................................................................... 33
CHAPTER IV FINDING AND ANALYSIS……………………….…………...35
A. Legal Protection For Muslim Consumers ................................................. 35
1.
Based on the law of Consumer Protection ............................................. 35
2.
Regulation of MUI ................................................................................. 37
3.
LPPOM MUI .......................................................................................... 40
4.
Monitoring Mechanism Toward LPPOM MUI on Halal Food Product.41
B. The Responsibility of Businessman Towards the Halal Guarantee of Food
Product…………………………………………………………………………46
1.
The Responsibility of Businessman ...................................................... 46
2.
The Penalties for Businessman............................................................... 47
CHAPTER V.CONCLUSIONS AND SUGGETIONS ........................................ 48
A. Conclusion ................................................................................................. 48
B. Recommendation........................................................................................ 49
BIBLIOGRAPHY ................................................................................................. 50
Book .................................................................................................................. 50
Internet / Website .............................................................................................. 51
xi
Journal ............................................................................................................... 51
Legislation ......................................................................................................... 52
APPENDIXES
xii
LIST OF QURANIC AND HADIST
Surah Al-Baqara No 168 of 286:
“O, Mankind! Eat of whatever is in earth lawful clean and follow not
the steps of the devil, no doubt, he is your open enemy.”.
Hadist Riwayat Muslim No 1015
“O ye who believe, eat of the sustenance of the good that we
have given you”. Then he pointed out a man, he had a long journey, her
hair tousled and dusty, he lifted his hands to the sky: “Yaa Rabbi! Yaa
Rabbi!” While he was eating unclean foods, clothes that he wears are
haraam , and he drank from forbidden beverages, and grew up on the
things that are forbidden , how it might be received his pray". (HR
Muslim no. 1015)
xiii
LIST OF STATUTES
The Government Regulation No.69 of 1999 on Label and Food Advertisement
The Decree of Minster of Religious Affairs (MA) No 518 on Guideline and
Procedure
Legislation No.8 of 1999 on Consumer Protection
Halal Food Examination and Determination, SK MA No 519 on Institute of
Implementation of Halal Food Inspection, ACT No.7 0f 1996 on Foods.
LIST OF ABBREVIATIONS
LPPOM
: The Institute for Supervision of Food, Drug, and Cosmetics
xiv
BPPOM
: Supervision body for food, Drug and Cosmetics
MUI
: Indonesia Ulama Council
xv
ABSTRACT
Moslem consumer protection becomes important in Indonesia. The most of
Indonesian’s consumers are Moslem, So many Product with unlabeled halal
make the Moslem consume difficult in determining the product consumed
whether it is halal or not. Based on the data of Research Institute for Foods,
Drugs and Cosmetics (LPPOM MUI) in 2014 there were so many products
without halal label. This research is a normative legal research and a library
research which applies statute and conceptual approaches. The data gathered
from the review of the literature or library materials related to the problem
or research materials that comprises of a premier law, secondary and
tertiary. The research found that Indonesian’s Moslem consumer should get
the rights and get more protection against the assurance halal of food
product as defined in the Law No. 8 of 1999. Meanwhile, The Responsibility
of businessman on the product, can be found in Article 19 Paragraph (1)
and (5) as well as Article 28 of Law No. 8 in 1999 on Consumer Protection.
For those who want to make the certificate halal label in their products, the
costumer should have to follow some processes or stages to obtain the halal
certificate issued by the MUI. The responsibility for businessman who was
tagging without procedure in halal labels could be deemed in the provisions
of the legislation included in Law No. 8 of 1999 on Consumer Protection,
Act No. 7 of 1996 on Food and The Government Regulation No. 69 of 1999
on food label and advertisement.
Keywords: Legal Protection, Muslim Consumer, Halal Product, Indonesia
xiii
1
CHAPTER I
INTRODUCTION
A. Background of Research
Nowadays, halal label is being mandatory requirement for
Moslem, either for
foods or medicines even everything that can be
consumed or used as well as the magnitude of the quantity needs of
Moslem in Indonesia which amounted to 88,20% from 252 Million.1
Moslem consumer protection becomes important in Indonesia,
because most of Indonesian’s consumers are Moslem. Therefore,
Moslem’s consumers have to get protection of good and service whether
foods or medicines in accordance with sharia. In the other hand, the
government must protect Moslem consumers in Indonesia.2
There are so many products with unlabeled halal made moslem
consumer difficult in determining the product consumed whether it is halal
or haram. Based on the data of Research Institute for Foods, Drugs and
Cosmetics (LPPOM MUI) in 2014 there were so many products without
the label halal.
In fact, the majority of imported food product in the market has no
label of halal and it was very often happened that moslem consumer
become the victim of unfair trade practiced by any variation good and
1
Agatha Uni Asmarani, 2010, Berapa Jumlah Penduduk Indonesia, Media
Kencana, Jakarta, page.5
2
Zulham, 2013, Hukum Perlindungan Konsumen, Kencana Pranada Media
Group, Jakarta, page.10
2
service offered. It is proven by the large number of finding product using
harmful substances in term of its process or purpose. The case of
Ajinomoto in 2001, for example, the consumers were confused after the
government through Indonesian Ulama Council (MUI) declared that there
was an element of pork enzymes in Ajinomoto. MUI recommended the
public not to consume Ajinomoto. As the results, Ajinomoto in Indonesia
withdrew its product from all over in Indonesia. Upon the spread of the
news, it made the market of Ajinomoto in Japanese also has decreased
radically. It means the news about its abolishing has negative effect to its
market in other countries.
This condition makes Moslem’s community began to take notice of
legal certainty to guarantee halal label in every food product to be
consumed. In this case, it makes moslem consumers more selective in
choosing food product. As the consequences, those imported foods and
products without halal label are becoming more abandoned than halal
one.3
Those phenomena has lead to the attention of the researcher to
conduct further study regarding “Legal Protection for Moslem Consumers
on Halal Guarantee of Food Products in Indonesia”.
3
Anonim, 2002, Makalah Label Halal, Yayasan Lembaga Konsumen Indonesia,
Jakarta, page.1
3
B. Research Problems
Considering the research background above, the writer states two
questions to be answered, they are:
1. How does legal protection for Moslem consumers on halal
guarantee of food products in Indonesia?
2. What are the responsibilities of businessmen to ensure guarantee
labeling of halal product?
C. Research Objectives:
1. To find out the regulation and legal protection for Moslem
consumers on halal guarantee of food products in Indonesia.
2. To find out the responsibilities of businessmen in ensuring
guarantee of halal food products traded in Indonesia.
D. Research Benefits
This research scientifically and practically has the benefit as follows:
1. The Scientific Aspect.
This research is expected to provide brainstorming ideas for the legal
protection of Moslem consumers on halal guarantee of food products
traded in Indonesia and gives some benefits especially to the
government and the moslem in minimizing the impacts of non-halal
products.
4
2. Practical Aspect.
This research is hoped to provide practical guidelines for Moslem
consumer in consuming food products in Indonesia
5
CHAPTER II
LITERATURE REVIEW
A. Review of Consumer Protection
The definition of consumer protection is stated in Law Number 8 of
1999 Article 1 paragraph 1. It states that consumer protection is all efforts
that guarantee the legal certainty to provide protection to the consumer
(Article 1, point 1).
The formulation in terms of consumer protection contained in article 1
point 1 of the consumer protection act is sufficient. The sentence which
stated that “any measure that guarantees the legal certainty” is expected as a
fortress to abolish the arbitrary action that could harm the interests of
business to consumer protection.1
There are some legal certainties in providing protection to the
consumers, such as improving the dignity and value of consumers, opening
the access of information about the goods and services and cultivating the
attitude of honest and responsibility to the businesses.2
Ali Mansyur further explains that consumer protections are divided
into five types. They are:
1
Ahamdi Miru dan Sutarman Yodo, 2010, Hukum Perlindungan Konsumen,
Rajawali Pers, Jakarta, page.1
2
Adrian Sutedi, 2008, Tanggung Jawab Produk Dalam Perlindungan
Konsumen, Ghalia Indonesia, Bogor, page.9
6
1. Physical Protection. It is related to the safety and security of soul and
body in using or consuming goods or services.
2. Social and Environmental Protection. It is to obtain information about a
product correctly, and to gain optimal results from the use of goods or
services, otherwise there will be problems of consumers to unsafe
products, in order to avoid consumer problems in consuming unsafe
product.
3. Economic Protection. The protection for the consumer when businesses
commit fraud in order to get the benefit as much as possible in cunning
way and without thinking about the products they produced.
4. Law Protection. The protection towards justice from consumer, and
they have right to be protected from the adverse treatment businesses.
5. Moral Protection. The protection in which consumers must be protected
their spirits and physics. So that it can produce good behaviors among
them.
The goals to be achieved in consumer protection can be divided into three
parts:3
1.
Empowering consumers by selecting, specifying the goods or
services according to their needs, and demanding their rights and
obligations.
2.
Creating a consumer protection system consisted of legal certainty
elements, transparency of information, and access to information.
3
Adrian Sutedi, Ibid, page 9
7
3.
Raising the awareness of businesses about consumer protection so
as to foster honesty and responsibility.
B. Overview of Moslem Consumer
1. The definition of Consumer
The term of konsumen in bahasa is derived from the word
consumer (British-America) or consument (Netherland). Literally,
consumer is the opposite of producer or everyone who uses the good.4 In
general, consumer refers to an end-user of product submitted by
businesses; everyone who acquire goods or services to be used and not for
trading or traded again.5
According to the Consumer Protection Regulations Article 1
paragraph 2 of Law No. 8 of 1999, the definition of consumer is every user
of goods or services provided in the community, either for their own, their
family, other people and other living being and not to be traded.
The expert of consumer problems in the Netherlands, Hondius
concludes that generally jurists agreed to define consumers as users of
final production of goods and services. By its formula, Hondius wants to
4
Celina Tri Siwi Krisyanti, 2009, Hukum Perlindungan Konsumen, Sinar
Grafika, Jakarta, page.22
5
Janus Sidabalok, 2010, Hukum Perlindungan Konsumen di Indonesia, Citra
Aditya Bakti, Bandung, page.17
8
compare between the consumer and end-user consumer. There are three
concepts of consumer’s definition; they are:6
a. Commercial. The user of goods and services or beneficiaries of goods
or services with a specific purpose.
b. Intermediary consumer. The user of goods and services or
beneficiaries of goods to be produced (producer) and traded
(distributor) with a specific objective.
c. End user. The user of goods and services or beneficiaries of goods and
services to require their own needs, their family or household but that
are not to be traded back.
In consumer’s opinion, a good and service are capital such as raw
material, adjuvant, or other product’s component produced. The
intermediary consumers get the goods or services in the marketplace
producer. Looking at the nature of the used of goods or services, the
consumers are actually businessmen both individuals and legal entities,
whether they are private or public, even providers of funds (investor),
maker of the final product used by end consumers or producers or
providers or seller of end products such as suppliers, distributors, sellers or
traders. Meanwhile, the final consumer was the consumers who are usually
used to meet the needs of personal, family, or household (consumer
products). The goods or services of consumer are generally obtained in the
6
Az Nasution, 1999, Hukum Perlindungan Konsumen Suatu Pengantar, Daya
Widya, Jakarta , page.13
9
consumer markets.7 The value of the goods or services used by consumers
in their daily lives were not measured on the basis of profit and loss
economically, but it needs to fulfill the life’s needed of consumer.8
2. The Definition of Moslem Consumer
The Moslems consumer is a Moslem who creates his daily
needed both material and spiritual. When moslems consumer got their
regular income weekly, monthly or annually, they never thought that
all of their incomes are theirs but in their money there is the right of
Allah. So that they live to seek the pleasure of Allah and part of their
income is spent in the way of Allah (Fisabilillah).9
3. The Right and Obligation of Consumer
The entire Islamic teachings related to the trade and
economics is oriented to the protection and rights of businessmen,
producers and consumers. Because Islam is taught and required the
existence of an element of fairness, honesty and transparency, the
moslems then conduct their activities on the basis of Islamic faith
either in practical of the trade or transfer of rights. Related to
consumer rights, Islam provides a space for consumers and producers
to defend their rights in a trade which is divided into several kinds as
follows:
7
Celina Tri Siwi Kritiyanti, 2009, Hukum Perlindungan Konsumen, Sinar Grafika,
Jakarta, page.25
8
Celina Tri Siwi Kritiyanti, Ibid, page.51
9
Zainuddin, 2009, Kebijakan konsumen,
http://zainuddion.blogspot.com/2009/09/kebijakan-konsumen.html, accessed on October 10, 2015,
at 12.00
.
10
a. The Right to Choose The Agreement in The Majelis (Khiyar
Majelis)
As-Sunah is established when both parties who made transaction or
withdrew a contract as long as they are still in the majelis. Khiyar
is the rights assigned for businessmen and consumers in the event
of consent and granted between a producer and consumer. When
akad has been done, then each party has the right to maintain or
cancel the contract as long as they are still in the majelis .
b. The Right to Vote Based on Requirement (Khiyar Syarat)
Khiyar Syarat is one of the parties who bought something with the
provisions (Khiyar) within a clear period. During its period, the
client could quash that transaction. In this case, khiyar syarat is
allowed for one or both parties who made the deal together.
c.
The Right to Guarantee The Product (Khiyar Aibi)
It is Haram for everyone who sells goods that have defects
(defective products) without explaining to the buyer (consumer). If
it is happened, the buyer has option to cancel or to precede the
contract.10
In addition to the Islamic Perspective there are also the rights
of consumers according to the Consumer Protection Act stated in
Article 4 Law’s Protection No. 8 in 1999. It mentions that among the
right of consumers are:
10
Yusuf As-Sabatin, 2009, Bisnis Islam dan Kritik atas Praktik Bisnis Ala
Kapitalis, Al- Azhar Press, Bogor, page.308
11
a. The right to comfort, security and safety in consuming of goods or
services.
b. The right to choose goods, services and obtain goods and services
in accordance with the exchange rate, conditions and guarantees.
c. The right to get the correct, clear and true information about the
condition and the guarantee of goods or services.
d. The right to complaints on goods and services used.
e. The right to receive the guidance and consumer’s education.
There are some formulas concerning consumer rights which are
pointed broadly. They can be divided into three rights that become
basic principles, namely:11
a. The rights to prevent consumers from harm.
b. The right to acquire goods or services with proper price
c. The right to obtain solving problem solution.
Therefore, those three basic principles of its right is an
assemblage of multiple consumers’ rights as regulated in consumer’s
protection Act; then it is very essential for consumers. So it can be
used as the basic principles of consumer protection in Indonesia.
Besides, the consumers also have obligations which have been
regulated in Article 7 of the Consumer Protection Act. Some of them
are:
11
Ahmadi Miru dan Sutarman Yodo, Ibid, page 47
12
a. Making purchase of goods and services in the right way.
b. The Payment is made by the agreed of exchange rate.
c. Take a part of the efforts in resolving the legal dispute over
consumer protection.
Good behavior of consumers is focused only on purchasing of
goods or services. It is caused by the right time to the detriment of
producers when dealing (making transaction) with producers
(businesses).12
C. The Overview of Businessman or Producer.
1. The Definition of Businessman
The term produsen has Dutch origin which means producent, and
producer in English which means producer.13 Producer is often interpreted as
businessman who produces goods or services or it could be categorized as
manufacturer, wholesaler, professional retailer that is any person or
participating companies in providing goods or services to consumers. Thus,
producers are not only interpreted as the manufacturer or enterprise which
produced the product but also those who associated with the delivery or
distribution of product to the consumer.14
Based on the Consumer Protection Act, the term of producer is called
as businessman. Article 3 paragraph 1 defines that businessman is an
12
Ahmadi Miru dan Sutarman Yodo, Ibid, page.50
N.H.T. Siahaan, 2010, Hukum Perlindungan Konsumen dan Tanggung Jawab
produk, Panta Rei, Jakarta, page.28
14
Janus Sidabalok, 2010, Hukum Perlindungan Konsumen di Indonesia, Citra:
Aditya Bakti, Bandung, page.16
13
13
individual or enterprise, whether it is a legal entity or not which is established,
domiciled or conducting activities within the jurisdiction of the Republic of
Indonesia, either individually or jointly with the agreement of business
activities in various economic fields.
The explanation of the Consumer Protection Act has categorized
businessman as companies, corporations, state enterprises (BUMN),
cooperatives, importers, traders, distributors, and others. 15 Those definitions
will allow consumers to demand compensation so that consumers are not
difficult to sue the defendant parties. It would be even better if the Consumer
Protection Act provide details as stated in the Article 3:16
a. The producer means the maker of the finished product, any raw
material, or a spare parts maker and everyone who put the name, brand
or any other sign of distinction on the product, making himself as
producer.
b. Anyone who imported, or leased a product or any kind of distributions
of goods. In European setting, it is interpreted as manufacturer and
responsible as a producer.
c. If a product identity is unknown, then each supplier will be responsible
as a producer, unless he shall notify the person who suffered the loss in
a short time concerns on the identity of the manufacturer or the person
submitting the product to him. The same case is also happened to the
15
Celina Tri Siwi Kristiyanti, Ibid, page.41
Ahmadi Miru dan Sutarman Yodo, 2010, Hukum Perlindungan Konsumen,
Rajawali Pers, Jakarta, page.9
16
14
imported product as example if the product does not indicate the
identity of import as intended in paragraph 2, the term of businessman
is a term used by lawmakers who are generally better known as
entrepreneurs.
Indonesian Economists Association (ISEI) mentioned four major
groups among economic players; three of them are included into the groups of
employers (businesses, both private and public) while the last groups are:17
a.
The Investor. The provider of funding for various purposes, such as
banking, leasing, brokers, other fund providers, etc.
b.
The Manufacturer. The businessman who creates and produces
goods or services of goods and other services. (Such as raw
materials, additives and other materials).
c.
The Distributor. The businessman are those who distributes or trades
in goods or services to the public, such as merchants in retail, street
vendors, cafes, shops, supermarket, hypermart, hospitals, clinics,
stalls doctors, public transportation, law firms, etc.
1. The Right and Obligation of Businessman.
The Article 6 of the Law of Consumer Protection prescribes that
the businessman has the following rights:
a.
The right to receive payment according to the agreement
concerning the conditions and exchange of goods or services
traded;
17
Adrian Sutedi, 2008, Tanggung Jawab Produk Dalam Perlindungan
Konsumen, Ghalia Indonesia, Bogor, page.11
15
b.
The right to get legal protection;
c.
The right to self-defense in a completion of law of consumer
disputes;
d.
The right to legal rehabilitation if it is proved that the consumer
loss is not caused by the goods or services traded; and
e.
The rights regulated in the provisions of other legislation.
The Rights of businessman in accepting the payment according to
the conditions and exchange of goods or services traded showed that the
businessman cannot demand a lot more about the condition of the goods or
services that were inadequate according to the prevailing prices on the
same goods provided to consumers. In common case, when a good or
service which quality is lower than similar goods, the parties then agree on
the price of goods at lower prices.18
The Law of Consumer Protection regulates both rights and
obligations of businessman. Based on the Article 7 of Law of Consumer
Protection, the obligations of businessman are:
a.
Every business activity should be done in a good procedure.
b.
Giving true and clear information about the condition of the
goods, services or foods and providing an explanation for the
use of repair and maintenance.
18
Ahmadi Miru dan Sutarman Yodo, 2010, Hukum Perlindungan Konsumen,
Rajawali Pers, Jakarta, page.51
16
c.
Treating or serving the customers properly and honestly and
indiscrimination.
d.
Giving a Guarantee of the quality of goods and services
produced or traded based on the provisions of the standard of
quality of goods or services.
e.
Allowing the consumers to test and try the products and
services as well as provide insurance of goods or services to
be traded.
f.
Providing the compensation for any loss or change as a result
of the use, consumption and utilization of goods or services
traded.
The Law of Consumer Protection obligated to all businessmen to
conduct activities in good procedure and also consumers are required to
make the purchasing of goods and services in the same way.19
In the Consumer Protection Act, it appears that good faith is better
emphasis on businessman because it covers all stages in performing their
business activities so it can be interpreted that the obligation of
businesses to behave properly begins when the goods are designed or
produced to the sales stage. Conversely, consumers are only required to
behave well in making purchases of goods or services. This is due to the
possibility of harm to consumers starting from goods produced by
19
Ahamdi Miru dan Sutarman Yodo, Op.Cit, page.54
17
businesses for consumers; it is likely to be detrimental to the producers at
the time of the transaction by the manufacturer.20
2. The Responsibility of Businessman.
According to Zulham in his book entitled “The Law of Consumer
Protection” a businessman has three principles of responsibility. They
are:21
a. Fault liability. The responsibility which requires the element of fault.
The Concept is known as defined in the provisions of Article 1365 of
the Civil Law that is act against the law. The Article 1365 of the Civil
Law stated that “Every legal violation, which causes harm to others,
requiring an offender to replace such losses”. In other words, act
against the law based on the Article 1365 of Civil Law requires the
plaintiff to prove the existence of an element of fault.
b.
Contractual liability.
The civil liability on the basis of agreement or contract of
businessman both goods and services over the losses suffered by
consumers due to the consumption of goods produced or utilize the
services rendered. It means that there is a contractual agreement or
direct contract between businessmen with consumers. In the
agreements or contracts between businessmen and consumers always
use the raw standard agreement provided by businessman. Since the
20
Ahamdi Miru dan Sutarman Yodo, Ibid, page.54
Zulham. 2013, Hukum Perlindungan Konsumen, Kencana Pranada Media
Group, Jakarta, page.83
21
18
raw contents of the contract have been set unilaterally by
businessman, the general contents of the standard contract will be
more load businessman rights and obligations of the consumer,
rather than the rights of consumers in the obligations of businessman.
This kind of provisions in standard contracts is called as clause,
which generally burdensome or even tends to burden consumers. The
prohibition inclusion of standard clauses in the standard agreement is
intended to give consumers the position equivalent to businessman
that based on the principles of freedom of contract.
In Article 18 the Law of Consumer Protection stated that the
supply of goods or services are intended for trade; the businessman is
prohibited to create the standard clause in any document or
agreements.
1) Stating the transition of businessman responsibilities
(goods or services)
2) Stating that business has the right to refuse the return of
goods purchased by consumers.
3) Stating that the businessman has the right to refuse the
money paid of goods or services bought by consumer.
4) Declaring that the granting of authorization from
consumers to businessman, either directly or indirectly
to any unilateral action relating to goods purchased by
19
consumers who become the object of buying and
selling.
If a product is defect and has caused the loss, the consumers
should see the content of the contract, both written and unwritten.
This theory belongs to strict obligation, in which liabilities that
are not based on the efforts but they are made by manufacturers.
It means that although the producers have attempted responsible
for damages, the consumers remain suffered losses. Besides, the
weakness of this theory in legal protection for the interests of
consumers are the time restrictions of lawsuit, notification
requirements, the possibility of denial (disclaimer), and the terms
of contractual relations.
c. The Strict Liability
Strict liability is the principle of responsibility that sets the
error is not as decisive factors. However, there are exceptions
that allow exempting from responsibility, such as force
majeure.
In Black’s Law Dictionary, strict liability means “Liability
that does not depend on actual negligence or intent to harm, but
that is based on the breach of an absolute duty to make
something safe. Strict liability most often applies either to ultra
hazardous activities or in products liability cases”.
20
Generally, the legal relationship between producers and
consumers is the ongoing relationships and sustainable because
both of them want and have a fairly high level of dependence.
The correlation occurred since the process of production, distribution,
marketing and supply until the result of consuming its products. Whereas, based
on Article 19 of Law Consumer Protection, the businessmen have responsibilities.
The responsibilities of businessmen are as follows:
1) The Businessmen are responsible for compensating for damage, pollution
or consumer losses due to consumption of goods or services produced or
traded.
2) The Compensation as described in paragraph 1 can be either a refund or
replacement of goods or services similar or equivalent value, or health
care or giving compensation in accordance with the provisions of the
legislation.
3) Providing compensation implemented within a period of 7 days after the
transaction date.
4) Giving Granting of the indemnity as defined in paragraph 1 and paragraph
2 did not eliminate the possibility of criminal charges based on further
evidence regarding the existence of an element of error.
21
Based on the explanation of Article 19 paragraph 1 it can be seen that the
responsibilities of businessman are:22
a) The responsibility of compensation for damage
b) The Responsibility for pollution
c) The Responsibility for consumer loss
In this case, the defective goods and products do not constitute the sole
basis for the accountability of businessman. It means that the responsibility of
businessman is covering any losses happened by consumers.23
D. The Overview of Halal Product
1. The Definition of Halal
The term halal in Qur’an means food and beverages that are
consumed everyday should have been assigned by regulations relating
to the consumption of food and drink.24 The halal food for moslems is
a sharia that must be obey as affirmed in the Holly Qur'an:
Surah Al-Baqara : Verse No 168 of 286:
22
Ahmadi Miru dan Sutarman Yodo, 2010, Hukum Perlindungan konsumen,
Rajawali Pers, Jakarta, page.126
23
Ahamdi Miru dan Sutarman Yodo, Ibid, page.126
24
Anonim, 2003, Modul Pelatihan Auditor Internal Halal, Direktorat Jenderal
Bimbingan Masyarakat Islam dan Penyelenggaraan Haji, Jakarta.
22
“O, Mankind! Eat of whatever is in earth lawful clean and follow not
the steps of the devil, no doubt, he is your open enemy.”.
The hidden message of the verse above can be interpreted that
Allah ordered man to eat anything in this world created by Him, along
the boundaries of the lawful and good. Allah also commanded people
to be careful in choosing foods that are good for health and spiritual.
2. The Definition of Halal Product
Based on the Article 1 paragraph 5 of Government Regulation
No. 69 of 1999 on food labels and advertisements, Halal products are
food products that do not contain ingredients that are prohibited for
consumption by moslem; both raw materials and additives are
processed through a process genetics and irritation of food, and its
management is done in accordance with Islamic.
It means a product that qualified in accordance with Islamic
Shari'a and its food products are permitted for a Muslim to be
consumed.
These are the characteristic of halal food product:25
a.
Does not contain pork ingredients.
b.
Does not contain other ingredients that are forbidden or
classified as unclean as: carcasses, substances derived from
human organs, blood and etc.
25
Departemen Agama RI, 2008, Panduan Sertifikat Halal, Directorate General
Bimbingan Masyarakat Islam dan Penyelenggara Haji, Jakarta
23
c.
Does not affect the function of normal physical and mental.
d.
Free from najis (filth) and the product is not derived from
animal carcasses and dead because it is not slaughtered or
hunted.
e.
All the animal ingredients should be original and
slaughtered based on Islamic sharia’s procedures.
f.
Does not contain wine, alcohol, and etc.
3. The Halal Certification.
The halal certificate is a MUI’s fatwa that stated that the product has
been in accordance with Islamic Shari'a. The halal certificate is a requirement
for obtaining the labeling of halal on the packaging of the product from
government authorities.26
Based on Article 1 Letter d, The Religion Ministerial Decree No. 518
of 2001 concerning on the Guidelines and Procedures for Examination and
Determination state that the “Halal certification is a written fatwa and claim of
halal food product and it is issued by examiner agency having authority
against the product”
According to the General Guidelines for Halal Assurance System LPPOM
MUI, halal certification is a process for obtaining a halal certificate through
several steps to prove that the material production and Guarantee Process System
fulfilled the standard of LPPOM MUI.
26
Aisyah Girindra, 2005, Pengukir Sejarah Sertifikat Halal, LP POM MUI,
Jakarta, page 15
24
Picture of 1. The Halal Certification
The Halal certificate is given in order to provide certainty on the
status of a product, such as in food products, medicines and cosmetics
that are safe for consumption. Besides, it can prevent the occurrence of
irregularities halal status of products produced by manufacturer. There
are some procedures should be followed by businessman in getting
halal certification, they are: 27
a. Every businessman who applies the halal certification for its
products must fill out the form that has been provided and attach
following data:
27
Anonim, 2002, Pedoman Untuk Memperoleh Sertifikat Halal, LPPOM MUI,
Jakarta, page.3
25
1) Specifications and Certification of raw materials,
additives or auxiliary materials.
2) The Halal Certification for both local and imported
products. Islamic institution that has been recognized by
MUI (imported product).
3) The halal assurance system described in the guide as
well as the halal standard procedures implementation.
b. The Auditor Team of LPPOM MUI conduct investigation into the
company's location businesses, after the form and its annexes
submitted and examined completeness by them.
c. The results of the examination and laboratory findings were
evaluated in the meeting of experts in LPPOM MUI, if the
requirements have been fulfilled then the auditor made a report and
submitted to the commission meeting to be assigned as Halal status
of MUI.
d. MUI can refuse the examination report, if it is not considered to
meet all the requirements that have been determined.
e. The Halal certification issued by MUI after undergoing several
stages of the examination process.
26
Picture of 2. The requirements of halal certificate
3. The labeling of Halal
The Government Regulation No. 69 of 1999 concerning on food labeling
and advertising halal mentions that every description of food in form of
pictures, writings and a combination of both or other items / ingredients
that included in food, affixed to, or a part of food packaging. Halal label
is a label of food packaging which indicates that the product has been
considered after undergoing several stages of the examination process.
27
Based on the c Government Regulation No. 69 Article 10, any
person who produces or puts the packaged food to be traded in Indonesian
territory and stated that the food is permitted for Moslems are responsible
for the correctness of the statement and should give a description or word
‘halal’ in its package.
Picture of 3. The Official Halal Label of MUI
Source: www.halalmui.org
The Article 11 is described for supporting a lawful statement as
defined in Article 10 that any person who produces or distributes
packaged food to be traded into Indonesian territory must be audited by
an institution that has been established by the provisions of the legislation
because there were many products, especially food products using
unofficial halal label or logo in their packaging. Therefore, moslems
should beware of the false label created by unscrupulous employers to
attract moslem consumers due to confusion regarding regulations. .
These are the types of counterfeit products circulating in the halal
community. Below are the examples of unofficial halal logo with no halal
assurance from government.
28
Picture of 4. The Fake Halal Label
Source: www.halalmui.org
From the above explanation it can be concluded that the labeling
of halal is the word halal both in Latin and Arabic letters affixed on the
packaging of food, drinks and medicines or cosmetics on the approval of
the Ministry of Health which previously have obtained halal certificates
in advance of the Indonesian Ulama Council (MUI).
The labeling of Halal on the food and drink will indicate to the
consumers that both products have been examined and guaranteed by
authorized institution.28
In Article 3 Paragraph (2) of Government Regulation No. 69 of 1999
concerning the labeling and advertising of food explained that the label of
food is at least containing the following details:
a. The name and address of the party who produces or put their hands
into the Indonesian territory.
b. The Date, month and expired.
c. The list of ingredient used
d. The net weight or net contents
28
Medan.
Bisma, 2010, Sertifikat Halal dan Cara Memperolehnya, Law Faculty of USU
29
e. The labeling of Halal.
E. The Overview of Food Product
1. The Definition of Product
The product is something that is negotiated with the aim to benefit from
the creativity of a person, or a company’s marketing team. Kotler and
Amstrong defined that product is everything that can be offered to the
market to satisfy a desire needs such as physical goods, services, property,
places and people.29
Kotler states that the product is everything that can be offered to the
market and can fulfill the need of daily life. By its definition, researcher
can conclude that the product means of satisfying the needs and wants of
consumer offered by company with purpose to fulfill the needs of
consumer.
2. The Definition of Food
Etymologically, makan means consume something through the mouth
and makanan is anything that can be eaten. 30 Meanwhile, In Arabic,
makanan is derived from the word at-Taam and plural al at 'imah which
means foods.31 Meanwhile, based on the encyclopedia of Islamic law, food
29
Philip Kotler, 2012, Manajemen Pemasaran, page.183
Anonim, 1983, Proyek Pembinaan Prasarana dan Sarana Perguruan Tinggi
Agama IAIN, Ilmu Fiqh dan Hukum Islam, Directorate of Islamic Religion, Jakarta,
page.525
31
Ali Mutahar, 2005, Kamus Arab Indonesia, Hikmah, Jakarta, page.130
30
30
is anything that can be eaten by humans or something that could eliminate
hunger.32
Based on Law No. 7 in 1999 concerning on Food stated that everything
coming from biological sources and water, whether treated or untreated,
which are not intended as food and beverage for human consumption,
including food additives, raw materials and other ingredients are used in
the preparation, processing, and producing of food.
32
Abdul Azis Dahlan, 1996, Ensiklopedia Hukum Islam, Ikhtiar Baruvan Hoeve,
Jakarta, page.1071
31
CHAPTER III
RESEARCH METHODS
A. Type and Approach Research
This research is a normative legal research or a library research.
Normative legal research is the study of law that put down the law as the
building a system of norms, such as principles, norms of legislation, court
decisions, agreements and doctrines (teachings) of which related to the
protection of Moslem consumers to guarantee halal products in Indonesia.
The researcher used several approaches within normative law, they are:
1
Statute approach. It is an approach made to various laws or regulations
relating to the protection of Moslem consumers to guarantee foreign halal
food products in Indonesia.
2
Conceptual Approach. It is an approach by examining the progress views
and doctrines to understand the concepts.
In this method, the researcher tried to find out data through literature
review on the rule of law related literature and interviews with informants,
they are: LPPOM MUI, BPPOM and government or related agencies.
B. Legal Materials
The data used in this research is secondary data obtained from the
study of literature or the review of the literature or library materials related to
32
the problem or research materials that comprise a premier law, secondary and
tertiary. This study used the following legal materials:
1
Primary legal materials, it consists of jurisprudence legislation on court
decisions and international agreements. The primary legal materials are in
the form of legislations related to legal protection of consumers on food
products labeled halal in Indonesia, such as : Law of Consumer Protection
No. 8 of 1999, Act No. 7 of 1996 on Food, the Minister of Religious
Affairs (MA) No. 518 on Guidelines and Procedures for Examination and
Determination of Halal Food, Government Regulation No. 69 of 1999 on
Labels and Advertising food and other regulations related to the research.
2
A secondary legal material is a legal substance which could provide an
explanation for the primer law. The secondary law can be in the form of
books, journals, research results related to legal protection of consumers
on food products labeled halal in Indonesia.
3
A tertiary legal material is a legal substance that supports the primary and
secondary legal materials to provide insight and understanding of other
legal materials.
C. Method of Collecting Data
The analysis of the data is done in these following procedures:
1. Literature Review
Literature review is a study of literature, scientific journal, and applicable
laws and regulations that are relevant to the issues being investigated.
33
2. Interviews
Interviews are held a question and answer directly to the informant who
linked on Protection against collateral Muslim consumers of halal