Food for Thought

Earlier this year the Department of Health published draft amendments to the Regulations relating to the Foodstuffs, Cosmetics and Disinfectants Act, 1972, which regulates the labelling and advertising of foodstuffs.

The purpose of the amendment is to reduce the prevalence of non- communicable diseases, to provide consumers with factual information so that they can make healthier choices as well as to rectify certain loopholes in the current legislation.

What does this all mean for you as the consumer and how might it impact your weekly trip to the supermarket? Some of the changes include:

• Nutritional information is mandatory on all food labels, subject to some exceptions e.g. small packaging or home industry products. For the health conscious, this is a welcome change as healthier choices can be made.
• No health claims can be made about added fructose, non-nutritive sweeteners, fluoride and added aluminium and, in particular, that these substances may make a positive contribution to, or may improve, health. While in the short-term these substances do have health benefits, the motivation for such an amendment is that the long term effects of these substances are not yet known.
• No health claims may be made for foodstuffs which naturally contain the claimed properties. Bottled water is one example of this – it will not be allowed to claim that the water is low in energy as this is the natural property of all water. Claims that vegetable oils are low in cholesterol will also not be allowed as all vegetable oils are low in cholesterol.
• It is no longer allowed to make claims in the negative – instead of stating that a product is 98% fat free, the label will have to state that it contains 2% fat.
• Health claims in general have been limited, and can only be made if the stipulated criteria have been met. Words such as “healthy” and “wholesome” are not allowed. Furthermore, words such as “rich” and “pure” must comply with certain standards before such a claim can be used. The use of misleading pictures for example, a slim lady with a measuring tape around her waist, is also not allowed as it deceives a consumer into thinking that the product has slimming benefits.
• Welcome changes for consumers are the amendments which deal with certain loopholes in the current legislation which gave rise to the horsemeat and brining of chicken scandals. In this regard, the indication of the type of animal, fish or bird must be present on the label. So, for those who are partial to a bit of horse or donkey meat, just look for it on the label. Furthermore, brined chicken cannot be slipped into the market under the premise of the umbrella term “enriched” as only foods that contain essential nutrients may claim to be enriched – salt water not being one them. Brined chicken has also been defined as a processed meat and therefore manufacturers who choose to brine their chicken will have to identify it as such on the label.
• More controversial provisions include the religious endorsements of foods. The endorsements by specific religious entities are prohibited unless food business operators give consumers their constitutional right to freedom of choice by making such food without any religious endorsement available on the shelf at all times. So manufacturers or importers of foods bearing of “Halaal” or “Kosher” marked products must make similar products bearing no such religious endorsement available for consumers who do not wish to purchase marked products. The motivation for the amendment provided is to allow all consumers to exercise their constitutional rights; however, it will be interesting to see whether this provision is upheld.
• The advertising of food and non-alcoholic beverages to children (defined as being below the age of 18) is also to be regulated. “Unhealthy” foods may not be marketed to children and in particular the use of child actors, sports stars, celebrities, or cartoon type characters is not allowed. One provision also states that food business operators shall not abuse positive family values such as portraying any happy, caring family scenario in order to advertise healthy foods.

Many of the provisions are aimed at providing a consumer with factual information free from deceptive or misleading marketing terms in order to enable the general public to make healthier food choices.

What recourse does a consumer have if he is subject to misleading or deceptive marketing or labelling of foodstuffs? The Foodstuffs, Cosmetics and Disinfectants Act makes it an offence to describe for purposes of sale, any foodstuffs in a manner which is false or misleading in respect of, among others, the origin, nature, substance, composition and quality. Furthermore, section 41 of the Consumer Protection Act prohibits false, misleading, deceptive representation or to falsely state, imply, or fail to correct an apparent misrepresentation that goods have ingredients or qualities that they do not have.

An aggrieved person can also lodge a complaint with the Advertising Standards Authority, should the advertising of the foodstuff be misleading or deceptive. In particular, the Food and Beverages Code provided by the ASA specifically deals with misleading presentations in advertising for food and products. The complaint is lodged with the ASA who after receiving submissions from the opposing party, adjudicates on the matter.

It remains to be seen whether the more controversial provisions of the Regulations will be maintained. Perhaps our little darlings’ calls for Ronald McDonald’s treats will be a thing of the past.

Hillary Brennan – Attorney
hillary@rademyer.co.za