New legislation pays specific attention to the wording of labels and how products are advertised Label laws get teeth by Karien de Villiers 10 MILK & JUICE JUNE 09
INDUSTRY HOOFARTIKEL NEWS When it comes to packaging, labelling and sell-by dates, it is important to stick to the parameters of the law to ensure the safety and benefit of all parties involved. In this article, we look at the important role that food labelling and packaging plays in the packaging of any foodstuff destined for human consumption, as well as important legislation regarding food safety. Historically, humans have taken food for granted, cheerfully consuming whatever is put in front of us and basing our assessment on its taste and its ability to assuage our hunger. In more recent years, however, people have started to take much more interest in what goes into our food, says Nigel Sunley of Sunley Consulting. This, however, has drastically changed in recent years. The reason for this, says Sunley, is partly because of better public education, partly because the link between food and health is better understood, and partly because consumer bodies and lobbying groups with particular food interests, have become prominent and often vociferous in their demand for more information. Processors are left with a gamut of challenges, not to mention added responsibility. It is important to be well aware of the legal requirements, challenges and opportunities. As consumers are becoming increasingly knowledgeable, food safety should be the primary focus. Moreover, food labelling should provide most, if not all, of the answers to consumers questions, says Sunley. To protect and inform In the food industry, packaging plays a major role in protecting a product and ensuring its safety. If the product is a solid substance, it should be protected from physical damage. According to Sunley, effective packaging should: Prevent the entry of micro-organisms, insects or rodents. Act as a barrier against loss of moisture (for liquid or moist products) or absorption of moisture (for dry products). Protect against entry of oxygen in the case of oxygen-sensitive products such as products containing poly-unsaturated fats or oils. Protect against ultraviolet rays (where relevant). Prevent the entry of toxic or noxious chemicals, gases or odours into the product. Food and the law According to the Dairy Standard Agency, many regulations relating to the production, marketing and labelling of food are in place to protect the South African consumer. These laws deal with matters, such as composition, labelling, hygiene, marketing, safety, quality, import and export. The most important laws include: The Foodstuffs, Cosmetics and Disinfectants Act (Act 54 of 1972), Regulation R1555. The Agricultural Product Standards Act (Act 119 of 1990), Regulation R2581. The National Health Act (Act 61 of 2003), Regulation R918. Packaging, by means of labelling, acts as a way of communicating with the consumer. All food labels in South Africa must comply with the latest food labelling and advertising MILK & JUICE JUNE 09 11
INDUSTRY HOOFARTIKEL NEWS legislation, and it is important that all labelling includes certain mandatory information. Depending on the product and the type of claims that one may wish to make, other information will have to be included as well. With the third draft of the South African Food Labelling Regulations (under the Foodstuffs, Cosmetics and Disinfectants Act, No 54 of 1972) released mid-2007, it has become prudent to design labels and advertise new products with the proposed regulations in mind, notes Gabi Steenkamp, a registered dietician in Johannesburg. This act addresses the manufacture, sale and importation of foodstuffs. It is authorised by local authorities in their areas of jurisdiction. New labelling legislation In the past, certain South African food manufacturers have used marketing strategies that mislead the consumer with blatant untruths and half-truths printed on labels. The new law pays specific attention to the wording of labels and how products are advertised. In essence, the objective is to create an equal platform for all products by stating: Only facts. Not confusing the consumer by word or implication. Using the label as a platform for consumer education. Below is a brief summary of some of the regulations pertaining to the labelling and advertising of food in South Africa, and the mandatory information that should be included: Name and address of the manufacturer or importer or distributor. Instructions for use. Net contents. Country of origin. Batch identification. Use by date. 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. 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. Label know-how Here are a few important notes to consider: The date of durability has to be declared, which must be written as best before or BB. Use by dates (on items with a shorter shelf-life) must be written out in full. The regulations propose changes to the labelling of a lot more than junk food. Hydrogenated or partially hydrogenated (trans) fats must be declared and quantified. No health, energy or nutrition claims may be made whatsoever for bottled water. If the claim lite or reduced is made, the label must state what the product is being compared to. Emphasising an ingredient, requires inclusion in the ingredients list. Name of the foodstuff must be a minimum of 4 mm in height. The picture may not be misleading. If the label says rich in, it must comply with the minimum amount required. Pure refers to chemical and biological safety which must be substantiated. MILK & JUICE JUNE 09 13
Only one official language is required on the packaging. Allergens should be listed in brackets after the ingredient. Ingredients must be listed in descending order of mass. A nutrient analysis table is mandatory if any claims are made on the label. Nutrient analysis must be carried out by a Sanas approved laboratory if claims are made on the label. Other terminology Sell by date: The last date of offer for sale to the consumer after which there remains a reasonable storage period in the home and after which the product is still safe and edible (department of health). Serving size (SS) SS means the mass, volume or number of a food or food unit, which is recommended by the manufacturer as the amount to be taken on its own or as part of a meal and the said mass, volume or number shall be stated in terms of grams, millilitres, capsules, powders, portions, sachets or tablets (department of health). Shelf life: The time that a processed food can be stored before changes in colour, flavour, texture or the number of micro-organisms makes it unacceptable (United Nations Food and Agricultural Organisation). Ingredient: Any substance including food additives and any constituents of compound ingredients, which is used in the manufacture or preparation of a foodstuff and which remains in the final product (department of health). Food safety: Refers to the assurance that food will not cause harm to the consumer when prepared and/or eaten according to its intended use (Codex Alimentarius). Claims and endorsements Provision is made for specific claims with specific wording that must be included on the label and/or advertising of the product. Many of these may well change in the final regulations as this is a hotly debated topic, notes Steenkamp. If any claim is made, certain provisions must be met, the least of which is that the nutritional analysis of the product must be done by a reputable South African national accreditation system (Sanas) accredited laboratory, following accredited procedures as set out in the regulations. No calculated nutritional information is allowed in this case. Endorsement of a product may only be granted by an organisation where the programme is run by professionals, and where the specifications have been set up in keeping with the latest research. No company or member of the Health Professions Council of South Africa (HPCSA) may endorse its own products. Liability According to Janusz Luterek, a partner at Hahn & Hahn Attorneys, the food supply chain often deals with product liability on an ad hoc basis and they believe that a voucher for a few hundred South African rand can put everything right. Consumers are becoming ever more militant. In South Africa, laws are being drafted to give consumers teeth, such as the proposed Consumer Protection Bill and the recently published Food Labelling Regulations, he notes in an article published on www.sheqafrica.com. In view of the new legislative and regulatory environment, as well as the ever more litigious society we live in, food manufacturers, wholesalers, retailers, restaurants, 14 MILK & JUICE JUNE 09
INDUSTRY HOOFARTIKEL NEWS and the entire food supply chain need to sit up and pay attention to product liability issues in the food industry, says Luterek. Currently, civil liability in food-related cases is no different from that of a vehicle accident or any other case in which one party damages another party s interests and an alleger of product liability must prove at least negligence on the part of the party that is being sued. Says Luterek: Typical matters which could be the subject of a civil matter include food poisoning, foreign objects in food, long term effect of additives and the like, and labelling issues, although many other causes of action may also exist or be created in the future. Consumers are becoming ever more militant. In South Africa, laws are being drafted to give consumers teeth The good news for the food industry is that at this stage South African law does not provide for punitive damages, he notes. In the proposed Consumer Protection Bill, which is currently in its final stages before being voted on by parliament, a radical change in the determination of liability, where a consumer is one of the parties, is proposed. The basis of liability as between a supplier and a consumer, will likely change from that requiring the consumer to prove negligence by the supplier, which is presently the case in South Africa, to a no-fault liability regime in terms of which the consumer will merely have to show that the food was off or that there was a foreign object in a package in order to prove liability by the supplier, says Luterek. Furthermore, the supplier and any other party in the supply chain will then be liable, regardless of what steps they took to prevent the occurrence. Food safety In terms of Section 2 of the Food, Cosmetics and Disinfectants Act it is a criminal offence to sell or distribute food which is unfit for consumption or which has a foreign object in the packaging. This criminal conduct can be attributed to any party in the supply chain from importer, manufacturer, distributor, retailer, to food outlet regardless of actual knowledge of the foreign object in the food or the state of the foodstuff, says Luterek. He goes on to say that criminal liability is often overlooked because the South African department of health and many local authorities have not been enforcing the laws and their criminal provisions. According to Luterek, a potential source of criminal liability across the food supply chain is the presence of foreign objects in food. Many by-laws and the Food, Cosmetics and Disinfectants Act introduce strict liability for foreign objects found in foodstuffs which should lead to criminal prosecution but often doesn t due to neglect by the inspectors. The public is not powerless, however, and a member of the public can institute a so-called private criminal prosecution in terms of which the member of the public, rather than the public prosecutor, lays a charge and prosecutes the criminal case in court, says Luterek. M&J MILK & JUICE JUNE 09 15