Strict crack­down on food la­belling

Claims con­tained in brand names on pack­ag­ing will have to be re­lin­quished by May next year

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - NATASHA WRIGHT

THE Food­stuffs, Cos­met­ics and Dis­in­fec­tants Act 54 of 1972 reg­u­lates the la­belling of food­stuffs in SA. Un­til 2012, the is­sue of food la­belling was not, par­tic­u­larly, of any ma­jor con­se­quence. En­ter the Reg­u­la­tions re­lat­ing to the La­belling of Food­stuffs in March 2012 (R146), the new and im­proved la­belling reg­u­la­tions un­der the act and sub­se­quent leg­is­la­tion, such as the Con­sumer Pro­tec­tion Act, that high­lighted the need for full dis­clo­sure to the con­sumer. Con­sumers are now much more aware of what in­for­ma­tion must be on the la­bel of their daily gro­ceries. As a re­sult, the duty of the man­u­fac­turer to fully dis­close the nu­tri­tional con­tent of food­stuffs has been placed un­der the microscope and con­sumers have be­come more se­lec­tive about what they feed them­selves and their fam­i­lies.

But R146 did more than just en­sure a higher level of dis­clo­sure to the con­sumer. It lev­elled the play­ing field be­tween man­u­fac­tur­ers, in­so­far as the claims that they may use in re­la­tion to their prod­ucts are con­cerned. In terms of R146, the words “whole­some”, “nu­tri­tious” or “healthy”, or any other words im­ply­ing that the food­stuff has health-giv­ing prop­er­ties, may not ap­pear on the la­bel of any food­stuff, ex­cept to the ex­tent that the food­stuff is a for­ti­fied food­stuff, in which case the ap­pro­pri­ate for­ti­fi­ca­tion in­di­ca­tions may be dis­played on the prod­uct’s pack­ag­ing. This re­stric­tion has meant that, in in­stances where a man­u­fac­turer’s prod­uct con­tains, for ex­am­ple, higher-than-av­er­age vi­ta­min lev­els, which, in the­ory, gives that prod­uct cer­tain “health-giv­ing prop­er­ties”, the man­u­fac­turer is pro­hib­ited from in­form­ing the con­sumer of those health-giv­ing qual­i­ties. This is even if the claim is true and can be sub­stan­ti­ated, be­cause of the re­stric­tions placed on the man­u­fac­turer by the De­part­ment of Health, and R146.

Ac­cord­ing to the de­part­ment, claims such as that are clas­si­fied as “func­tion claims” and the de­part­ment has, in the past, in­di­cated that there will be fur­ther amend­ments to R146 that will reg­u­late func­tion claims and other health-re­lated claims.

At the end of May the De­part­ment of Health is­sued pro­posed amend­ments to R146 which, among oth­ers, reg­u­lates the use of cer­tain claims, in­clud­ing func­tion claims and other health-re­lated claims on pack­ag­ing of food­stuffs, and pro­vides strict re­quire­ments that must be met in order for those claims to be used ap­pro­pri­ately.

The new amend­ments broaden the scope of R146 and in­clude new def­i­ni­tions that are not in the cur­rent reg­u­la­tions. Specif­i­cally, the de­part­ment has de­fined claims as:

a claim that de­scribes the phys­i­o­log­i­cal role and func­tion of a nu­tri­ent or sub­stance in growth, devel­op­ment and nor­mal phys­i­o­log­i­cal func­tion­ing of the body;

an ef­fect on the hu­man body, in­clud­ing an ef­fect on one or more of the fol­low­ing: A bio­chem­i­cal process or out­come; A phys­i­o­log­i­cal process or out­come; A func­tional process or out­come; Growth and devel­op­ment; Phys­i­cal per­for­mance; Men­tal per­for­mance; Dis­ease, dis­or­der or con­di­tion; and Oral hy­giene. The de­part­ment will also al­low claims that re­late to the con­sump­tion of a food­stuff that may re­duce the risk of dis­ease, pro­vided that the man­u­fac­turer of that food­stuff com­plies with strict re­quire­ments.

For in­stance, the claim that “a high in­take of fruits and vegeta­bles con­trib­ute to heart health by re­duc­ing the risk of coro­nary heart dis­ease and can­cer” may be made on the pack­ag­ing of a food­stuff, pro­vided that the food­stuff con­tains no less than 90% fruit or vegeta­bles by weight. How­ever, the claim is not per­mit­ted on fruit juices, ex­cept fresh fruit juices or fruit nec­tars.

A much wel­comed amend­ment is likely to be that which re­lates to slim­ming claims that are made on food­stuffs. Ac­cord­ing to the pro­posed amend­ments, a claim re­lat­ing to food that is an aid to weight re­duc­tion or weight loss may only be made if (among other re­quire­ments):

The food­stuff is la­belled with the words “only ef­fec­tive as part of an en­ergy-con­trolled pru­dent diet and an in­crease in mod­er­ate phys­i­cal ac­tiv­ity” in bold, cap­i­tal let­ters not less than 3mm in font height;

The to­tal en­ergy of the food shall be at least 40% less than the same quan­tity of the ref­er­ence food;

In­so­far as re­duced-en­ergy claims are made, the word “diet” or “zero” or words to a sim­i­lar ef­fect, shall not be used as a de­scrip­tor in the name, brand name or trade name or in any other man­ner; and

No words, pic­tures or graph­ics which im­ply that the food has weight loss prop­er­ties, or may re­sult in weight loss or slim­ming, di­rectly or in­di­rectly, are per­mit­ted, un­less com­pli­ant with the pro­posed amended reg­u­la­tions.

The de­part­ment’s at­ti­tude to­wards the trade name or brand name of a food­stuff, which may in­clude a health claim or nu­tri­tional con­tent claim, is ro­bust. It has in­di­cated that, in the case where health claims or nu­tri­ent con­tent claims form part of a brand name or trade name, the use of that brand name or trade name on the pack­ag­ing of the food­stuff must be phased out by 1 May next year, af­ter which the brand or trade name may no longer be used on the pack­ag­ing of the food­stuff, pro­vided that the brand or trade name was reg­is­tered be­fore 1 May 1995.

If the brand or trade name was reg­is­tered af­ter 1 May 1995, the use of the brand or trade name must be phased out by the day that the amended reg­u­la­tions come into force. In essence, own­ers of reg­is­tered trade­marks that fall within the am­bit of this re­stric­tion will no longer be able to use those trade­marks af­ter 1 May next year (or sooner), as reg­is­tered, in re­la­tion to those goods, and it is cer­tain that this amend­ment will be sub­ject to com­ment from the trade.

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