Legal Times 2 September 2011
In the first of this two-part series, we discussed new legislation on labelling and advertising of food. In Part 2 we are looking at things to consider when packaging products in South Africa.
In light of the Regulations to the Foodstuffs, Cosmetics and Disinfectant Act, 54 of 1972 (FCD Act), one needs to consider the following when packaging a product:
- Should you wish to emphasise any ingredient on the packaging of a product, that ingredient must be listed in the ingredients list.
- The name of the foodstuff must be a minimum of 4mm in height.
- Any pictorial representations may not be misleading.
- Only one official language is required on the packaging.
- Any allergens should be listed in brackets after the ingredients.
- 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.
By complying with these principles, the Minister of Health has eliminated unwarranted claims without a scientific base and thus seeks to protect the consumer.
Consumer Protection Act
The Consumer Protection Act 68 of 2008 (CPA) has brought with it several fundamental changes to the existing South African law, and its primary purpose is to prevent exploitation or harm to consumers. The CPA regulates the way that businesses relate with consumers, and how they market their products and services.
The CPA applies to every transaction occurring within the country as well as to the marketing and supply of goods and services.
The CPA touches on many aspects of supply relationships, including warranties, pricing, standards of service and quality, advertising, labelling, marketing and others. There is also a distinct focus throughout the CPA on clear and understandable language and ensuring that the consumer is not mislead by suppliers.
The CPA comprises of various sections which deal with regulatory issues and include the following:
- Section 4(5)(b) and (c) and section 41 deal with false, misleading or deceptive representations about a supplier or any goods or services.
- Section 24(2) deals with misleading trade descriptions. For the purposes of section 24, the following is important:
- A "trade description" is defined in section 1 of the CPA as any description, statement or other direct or indirect indication, other than a trademark, as to the number, quantity, measure, weight or gauge of any goods; the name of the producer of any goods; or the mode of manufacturing or producing an goods.
- The definition of trade description therefore includes any statement made in an advertisement, label or packaging, or any display of a supplier which describes the number, quantity, measure, weight or gauge of the goods advertised and/or referred to on the labels or packaging of the supplier.
- The implication of section 24 is that such trade description contained in any advertisement, packaging, label or display of a supplier must not mislead the consumer. For example, a supplier must not knowingly apply to any goods a trade description that is likely to mislead the consumer as to any matter implied or expressed in that trade description, eg low fat, pure juice, high fibre, "healthy", "slimming".
- Section 41 deals with express or implied false, misleading or deceptive representations. For the purposes of section 41, it is important to note that a supplier must not by words or conduct express or imply false, misleading or deceptive representations concerning material facts, or use exaggeration, innuendo or ambiguity as to a material fact or fail to disclose a material fact if that failure would amount to a deception.
- Section 21 deals with the consumer's right to return the goods, if the goods do not satisfy their intended purpose and are unsuitable. A supplier needs to ensure that it manufacturers and supplies quality products which are suitable for their intended use.
- Section 22(1) deals with the plain and clear language of labels and packaging and provides that notices and documents are to be in the prescribed form and in plain and clear understandable language.
- Section 56 deals with the implied warranty in respect of goods. With regard to warranties, section 56 of the CPA is important as:
- It now provides for an automatic warranty on the quality of goods. The implied warranty imposed by section 56 is in addition to any other implied warranty or condition imposed by the common law, the CPA or any other public regulation or any express warranty or condition which a supplier may have in its agreements with its customers.
- It has the effect that, in any transaction or agreement pertaining to the supply of goods to a consumer there is an implied provision that the producer or importer, the distributor and the retailer warrants that the goods comply with the requirements and standards contemplated in section 55 of the CPA, (ie that they are safe and of good quality), except to the extent that those goods have been altered contrary to the instructions, or after leaving the control, of the producer or importer, a distributor or the retailer, as the case may be.
- Section 58(1) deals with potential risks. It requires a supplier to draw the consumer's attention to any potential risks of an unusual nature. This will necessitate that packages containing any hazardous or unsafe goods must have adequate information advising the consumer of the risks of such goods.
- Section 61 deals with the liability of a supplier as a result of harm caused due to the supply of unsafe goods. Section 61(1) of the CPA is the section that potentially has the most drastic effect for businesses. Now a supplier of any goods is liable, without proof of negligence on the part of the supplier of the goods, for any harm caused by the goods.
- In terms of
Section 61 where harm may arise from a product failure, defect or
hazard or inadequate instructions or warnings regarding any hazard
arising from or associated with the use of any goods; it is
sufficient to show that damages were suffered only partly as a
consequence of these shortcomings.
- The type of harm for which a person may be held liable includes death, injury or illness, loss of or damage to any property, any economic loss that results from any of the types of harm listed above.
- If more than one party is potentially liable, the consumer can sue any of them, as their liability is joint and several.
It is imperative therefore to take every precaution in preparing the packaging of foodstuffs, and ensuring that only safe and reliable goods are sold and that suppliers have adequate public liability insurance.
The liability of a supplier is widely stated in the CPA, and all precautions need to be taken in order to prevent such liability. Accordingly, suppliers need to ensure that their instruction manuals contain adequate instructions and warnings in respect of risks and hazards, and are clear and in plain language, and further that the consumer is alerted of potential risks which may result from the use of the products. For example, a supplier should include a warning on all packaging in respect of unusual hazards, which may be caused as a result of allergens, additives or colourants.
At the same time, it must be made clear to the consumer (in writing) what the intended purpose of the products are and that harm may ensue should the consumer not use the particular product for that intended purpose. In this way risk and potential damages are reduced.
Enforcement of legislation
In terms of the CPA, the Consumer Tribunal may impose an administrative fine in respect of prohibited or required conduct. This fine may amount to the greater of 10% of the respondent's annual turnover during the preceding financial year or R1 million.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.