As the food, drug and medicine sectors are highly regulated from a labelling perspective, companies need to be aware of the claims they can make about their products on the packaging, says intellectual property (IP) services law firm Spoor & Fisher partner Megan Reimers.
Labelling regulations especially on food products are guided by legislation from the Department of Health (DoH), as well as the Department of Agriculture, Forestry and Fisheries – now known as the Agriculture, Land Reform and Rural Development (DALRRD). These regulations often dictate the information that packaging can contain, she adds.
“Under the Foodstuff, Cosmetics and Disinfectants Act, which is regulated by the DoH, companies may not make any claims that are misleading. This also includes the circumstances under which you can claim to have a high-energy or low-fat product or when you can claim the product contains certain nutrients, for example.”
Reimers also highlights the DALRRD’s Agricultural Product Standards Act, which covers the regulatory aspects of the ways in which food companies grade and describe their food, including the size of the font that is used on food packaging and labelling.
“If a company does not comply with those Acts, a complaint can be lodged against it at either of these departments. When companies decide to get new packaging, they sometimes try to obtain approval from the DALRRD upfront to avoid legal challenges,” she notes.
While consumers and competitors can also report misleading and/or inaccurate claims to the Advertising Regulatory Board (ARB), the ARB’s findings are not binding for non-members. However, should the board find a claim to be misleading or inaccurate, it can compel its members not to carry the advertising containing such claims, she points out.
“Normally, companies are given three months to make changes to their packaging following an adverse ruling. Even if companies are not members of the ARB and are not bound by its rulings, they have to consider the impact of the negative publicity surrounding an adverse ruling.”
Further, Reimers emphasises the importance of food companies making ethical decisions in terms their packaging and labelling, which form a crucial part of their brand identities. It is also a means through which consumers can protect themselves, as they know exactly what they are consuming.
The ethical requirements of food packaging and labelling also extends to aspects such as IP, of which four types – trademark, design, patent and copyright – can be applicable in this regard. She stresses the importance of original packaging and labelling to avoid any legal challenges, mainly from competitors.
Moreover, the tightening demand on environment-friendly products may be a hurdle for the packaging sectors, should they be required to take responsibility for the entire life cycle of products, she tells Engineering News.
“This will be increasingly difficult in the South African market in which there already is very little growth. It is a difficult economy, with not much money to throw around, ” Reimers concludes.
This article was first published in Engineering News.