Strict crackdown on food labelling
Claims contained in brand names on packaging will have to be relinquished by May next year
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.