What the new labeling legislation means for businesses and consumers
The new regulations relating to the Labelling and Advertising of Foodstuffs, No R 146 of the Foodstuffs, Cosmetics and Disinfectants Act, 1972 (Act 54 of 1972), which was implemented on 1 March 2012, aims to create a specific standard for informing consumers about the ingredients in foodstuffs. All labels and advertising will have to be presented in the same format, which will hopefully stem the amount of ‘misleading’ claims made in relation to foodstuffs. For example, the regulations will curb statements relating to sugar where manufacturers would label a product as ‘no sugar added’ but still contains sugars - just not in the form of added table sugar. This statement alone has caused considerable confusion amongst consumers who often misinterpret this statement as meaning the product is sugar free.
This is also intended to make it easier for consumers to compare different products and the new labelling will make it easier for consumers to identify nutritional information of products as well as allergens that the products may contain.
Broadly, the regulations state that food labels and advertisements may no longer contain items on their labels which create the impression that the food is endorsed by a health practitioner, or manufactured by or in accordance with recommendations by an organisation or in some way provides nutrition. Labels are also restricted in the use of certain terms such as ‘healthy’ and ‘nutritious’ or similar words and claims relating to nutrition, including that a foodstuff may have medicinal qualities.
However, many manufacturers are expressing frustration in complying with the new laws. This includes the nutritional information format, specifically the inclusion of dietary fibre method of analysis and the scientific determination of serving size, which cannot simply be the capacity of the packaging. In addition, many products need to accommodate other legislation in conjunction with R146, such as the Department of Agriculture, Forests and Fisheries regulations, which in some cases outweigh the stipulations of R146.
Manufacturers are also finding ingredient statements and the requirements they need to meet confusing, as well as what claims can be made about foodstuffs and what criteria need to be taken into account when it comes to ‘misleading’ descriptions with words such as ‘pure’, ‘natural’, ‘hand-made’, ‘fresh’, ‘original’ ‘finest’ and so forth.
It has also been pointed out that some manufacturers are having problems in complying to the laws with imported products, which cater to many markets, as the layout requirements are similar, but not the same as those used in other areas around the world. There is also the question of trademarks as some product names may be in breach of R146.
Furthermore, in the past, two similar products may have differentiated themselves by focusing on different strengths inherent in both products. This can no longer be done. A product may not tout the fact that, for instance, additional nutritional elements have been added to it. Consumers will actively have to compare products to see which is higher in content of the nutritional ingredients they want.
This also means that manufacturers of a product such as milk will no longer be able to claim that it may be good to strengthen bones, but may simply state that it naturally contains calcium. Manufacturers will also not be able to disclose whether a product contains microorganisms or compounds such as probiotics.
Additionally, from the manufacturers point of view, it will not be compulsory for food manufacturers to publish a typical nutritional information table and for those that do, they must be able to substantiate any labelling info within 48 hours of being requested to do so, which many believe may see manufacturers leaving off important information regarding their products ingredients.
The regulations are however a step in the right direction towards creating a better and healthier purchasing environment for consumers. Even though the regulations will undoubtedly cause some confusion and frustration initially, the right legal advice should make it easier they will be easy to negotiate and will lead towards increased clarity for shoppers.
Herman Blignaut is a partner at Spoor & Fisher and specialises in trademark enforcement (brand protection), copyright and unlawful competition matters. He is a fellow of the South African Institute of Intellectual Property Law.
Contact Herman on firstname.lastname@example.org or +27 676 1129