The Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972 (FCDA) regulates, amongst other things, the labelling of foodstuffs in South Africa. 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 FCDA 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, even if the claim is true and can be substantiated, because of the restrictions placed on the manufacturer by the Department of Health (DOH) and R146. According to the DOH, claims such as that, are classified as “function claims” and the DOH 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 2014, the DOH issued proposed amendments to R146 which, amongst other things, regulates the use of certain claims, including function claims and other health-related claims on the 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 DOH has defined function and health claims as:
Function claim: a claim that describes the physiological role and function of a nutrient or substance in growth, development and normal physiological functioning of the body;
Health claim: 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;
- a disease, disorder or condition; and
- oral hygiene;
As promised, the DOH has recognised that there is a place for these claims on the packaging of “deserving” foodstuffs. While the proposed amendments still prohibit the use of the words ‘wholesome’ or ‘nutritious’ or the like, the use of the word ‘healthy’ or any similar word that suggests that a foodstuff has any health-giving properties may be used when the word is used in a permitted function claim or disease risk claim. It follows, therefore, that while the reins have been loosened slightly, the word ‘healthy’ or any word with a similar meaning is not available for use without limitation, and the DOH intends to regulate that use strictly.
Insofar as function claims are concerned, the DOH has tabled a list of nutrients and vitamins and has listed a restricted number of claims that may be used in relation to those nutrients and vitamins, provided that they are present in the foodstuff in the prescribed amount, only. For instance, the DOH will allow function claims to be made on the packaging of a foodstuff that contains the prescribed amount of calcium, provided that only the following claims are made (only a few are listed):
- calcium is necessary to maintain healthy bones and teeth;
- calcium is necessary for normal nerve and muscle function / is needed for muscular growth and contraction and prevents muscle cramps; and
- calcium contributes to normal energy-yielding metabolism.
In respect of the mineral iron, some of the function claims that the DOH will accept are:
- iron is necessary for normal oxygen transport;
- iron contributes to normal energy production;
- iron is necessary for normal immune system function; and
- iron is necessary for normal neurological development in the foetus.
The DOH 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 ‘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 (amongst 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 3,0 mm 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, may result in weight loss or slimming, directly or indirectly, shall be permitted, unless fully compliant with the proposed amended regulations.
The DOH’s attitude towards the trade name or brand name of a foodstuff, which may include a health claim or nutritional content claim, is robust. The DOH 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 2015, 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 trade marks that fall within the ambit of this restriction will no longer be able to use those trade marks after 1 May 2015 (or sooner), as registered, in relation to those goods, and it is certain that this amendment will be subject to comment from the trade.
In essence, the DOH is trying to regulate claims in relation to foodstuffs that may mislead consumers as to the nature and quality of those foodstuffs. The notion of what is “healthy” may differ in the minds of consumers, to the extent that it may be considered to be a subjective opinion. It appears that the DOH is attempting to attribute an objective test to the concept of a “healthy” foodstuff and, if it succeeds, the consumer will be able to compare apples with apples and make an informed decision on that basis.
Written by Natasha Wright – Senior Associate, Trade Mark Litigation, Adams & Adams and verified by Jenny Pienaar, Partner, Trade Mark Litigation, Adams & Adams
IMAGE: Woolworths Sustainability Report
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