Articles

Food law know-how - Part 1: Labelling and advertising

Farm Link December 2010
By Simone Monty

In this two part series we will examine the legislation that regulates the manufacture and supply of foodstuffs as well as product registration, labelling, composition of foodstuffs and the restrictions on certain nutrients in foodstuffs in South Africa.

The material legislation dealing with foodstuffs in South Africa consists of the following:

  • The Foodstuffs, Cosmetics and Disinfectant Act, No 54 of 1972 (FCD Act), which addresses the manufacture, labelling, sale and importation of foodstuffs.
  • The National Health Act, No 61 of 2003, which regulates the hygiene of foodstuffs.
  • The Regulations under the Health Act, No 63 of 1977, which regulates the hygiene aspects of food premises and the transport thereof.
  • The International Health Regulations Act, No 63 of 1977, which regulates the hygiene requirements at ports and airports including vessels and aircrafts.
  • The Consumer Protection Act, No 68 of 2008 (CPA) which seeks to protect the consumer from hazardous products and hidden risks and dangers and further sets out the scope for which suppliers of goods and services will be liable in respect of such hazardous products, risks and dangers.
This legislation is based on the view that access to safe and affordable food is a basic human right. Food that carries potential risks can be harmful to one’s health, and consumers are entitled to expect and deserve protection against risks found in food. Accordingly, appropriate regulatory systems are important and have been put in place.

The FCD Act
New requirements of labelling and advertising of food products.

The FCD Act addresses the manufacture, labelling, sale and importation of foodstuffs. It is now of particular importance as, the minister of health has approved new regulations relating to the labelling and advertising of foodstuffs in terms of the FCD Act.

The effect of the regulations is that as from this year, the principles of label, design and advertising have changed dramatically. In terms of these principles the main aim is to create more effective communication channels from the manufacturer to the end consumer. This is applicable, among others, to the product characteristics, nutritional content when claims are made, the shelf-life of the product, the treatment the product has undergone and the allergens which the product might contain.

What the regulations state
The regulations are aimed at ensuring that consumers have access to properly and accurately labelled foodstuffs, which will in turn assist them, among others, in making informed food choices. The regulations also provide clear guidance on the dos and don’ts of the information provided on the labels and in advertisements of foodstuffs, which will be beneficial to both consumers and manufacturers.

Manufacturers of foodstuffs, both nationally and internationally in respect of imported foodstuffs, will be obliged to adapt their labelling accordingly. However, the implementation thereof will come into effect twelve months from the date of publication (ie from 1 March 2011) to provide for most of the labelling requirements included in the new regulations.

The regulations will be implemented in two phases. Here is a brief summary of some of the regulations pertaining to the labelling and advertising of food in South Africa.

Phase one
The first phase was concluded with the publication of the new regulations on 1 March 2010, with the contents covering, among others, the following aspects:
  • Date marking: To be mandatory for all packaging and should be applied (and not removed or altered in any point in time) on the packaging which is retained by the consumer. This information has to be available for the end consumer.
  • Batch number: All products shall bear a "batch number" which is compiled in such way that the product is easily identifiable and traceable. The “batch” means a definite quantity of a commodity produced essentially under the same conditions in a period not exceeding 24 hours.
  • Pictorial representations: Pictorial representations may not be false, misleading, and deceptive or create an erroneous impression regarding the contents of the container, its character, origin, composition, quality, nutritive value, nature or other properties in any respect.
  • List of ingredients: There must be a list of ingredients declaration, which contain vital information regarding the contents of the foodstuff, eg colourants, preservatives, etc. Ingredients must be listed in order of descending mass (not volume). The ingredient weighing the most will be listed first and the ingredient weighing the least will be listed last. All allergens must be identified in the prescribed format.
  • Nutritional information: The manufacturer must ensure the correctness of nutritional information to support validity of nutrient content claims, eg “high fibre” or “trans-fat free”, etc.
  • Quantitative ingredient declarations (QUID): When labelling places emphasis on one or more ingredients, the ingoing percentage in terms of mass of these ingredients should be declared. The percentage shall be printed in brackets in close proximity to the words, illustrations or graphics referring to the ingredient/s, in brackets after the ingredient listed in the declaration or directly after the name or descriptor.
  • Nutrient analysis: This must be in table form per 100g of product as eaten (or if not, clearly stating per 100g of dry product) or per 100ml for liquids. Per portion nutrient analysis is voluntary, if no nutritional claims are made.
Phase two
The second phase of the process relating to the regulation of the labelling of foodstuffs by the department depends on factors such as the development of a nutrient profiling model suitable and applicable to South African conditions.

Some of the issues that have been put on hold for addressing during the second phase, are health claims on foodstuffs, serving sizes, the glycaemic index (GI) aspect, and determining the list of foodstuffs considered to be not essential for a healthy diet.

In addition to the above, the FCD Act provides that any words, pictorial representations, marks, logos or descriptions which create an impression are seen as means of communication to the consumer and must be taken into consideration when prohibited statements are identified. One cannot make use of endorsements on the packaging. “Endorse” is defined as to confirm or convey or declare an approval of a particular foodstuff in any manner but excludes certification.

Endorsements are not allowed at all:
  • By a health practitioner (as individual or through an organisation).
  • By organisations, associations, foundations and others (excluding religious certifying organisations and Fauna & Flora), unless approved by the director-general of health (scientific evidence and reports required).
  • By an individual when the testimony implies a nutritional claim.
  • By an endorsement of a manufacturer or seller (in form of a logo, mark, symbol, written or verbal statement).
  • There may be no reference to “health” or “healthy” or any implication that foodstuff itself or the substance of the foodstuff has any “health giving” properties. This is applicable to the name of the product name or trade name, except in the case of any fortification logo for food vehicles which states “fortified for a better health”. The words “wholesome”, “nutritious” or words with a similar meaning can be used on packaging material. No claims can be made indicating that the foodstuff provides complete or balanced nutrition. The word “cure” or any medicinal claims (including prophylactic and therapeutic claims) are allowed, subject to the Medicine and Related Substance Act 101/1965. But what about “scientifically proven”? The Department of Health states that the statement is not acceptable at present.
The FCA Act also provides that a food product cannot be labelled as being hypoallergenic, non-allergenic, “free from allergen” or similar wording used unless the food product was modified to reduce endogenous allergens in such a way that it is not detectable through testing (this information to be available at the government’s inspector).

In Part 2 (see March 2011) we will be looking at things to consider when packaging products in South Africa.

Talk to a specialist

Simone Monty

Partner
011 775 6335
E-mail Simone Monty