The South African government's Department of Agriculture, Forestry and Fisheries ("DAFF") has passed new Regulations relating to the Classification, Packing and Marking of Dairy Products and Imitation Dairy Products Intended for Sale in the Republic of South Africa ("R260") which will repeal the current Dairy Products and Imitation Dairy Products Regulations ("R2581") when it comes into effect on 27 March 2016.
The new R260 sees a host of new classifications for dairy products being introduced, including drinking yoghurt and custard. The fat content of dairy and imitation dairy products has also been reviewed. Dairy products that would previously have been classified as being "low fat" will, under the new law have to be classified as "medium fat" and, in order for a dairy product to qualify as "low fat," the labelling for that product must show the fat content to be less than 1.5% (as opposed to the current requirement of a fat content of between 1.5% and 2.5%).
The Government claims that these new amendments bring the
regulations in line with international standards as set out in the
The new R260 sees stricter marking requirements for dairy and imitation dairy products, with an ingredients' list being mandatory, the use of "best by/ use by/ sell by" dates, and batch code indicators being compulsory information to be displayed on the container of a dairy product. The new compulsory information must appear in the manner as prescribed in the primary food labelling and advertising law, the Labelling and Advertising Regulations under the Foodstuffs, Cosmetics and Disinfectants Act of 1972. There is a clear collaboration between DAFF and the Department of Health, who enforces the provisions of the Foodstuffs, Cosmetics and Disinfectants Act.
For years, the debate regarding the appropriate use of the word "fresh" in relation to milk has been ongoing, with the only guidance to producers being taken from the Labelling and Advertising Regulations. R260 now makes it clear that the word "fresh" may only be used in relation to pasteurised, ultra pasteurised, unpasteurised and/or raw milk, and pasteurised and unpasteurised cream. The word is not defined any further, which is not helpful to understanding how the term may be used in relation to those milk varieties or any other dairy products that fall under the regulation.
Under the current Regulations, a trade mark (registered or unregistered) may appear on the container of a dairy product in a font size that is larger than the prescribed font size of the class designation (for example: low fat cheese spread) of that product. The new R260 will ensure that dairy manufacturers may only use their trade marks in a font size that is larger than the font size of the class designation, on the containers of their dairy products, if those trade marks are registered.
Staying with intellectual property issues, both the current and
future Regulations prohibit the use of any word, mark, illustration
or depiction that constitutes a misrepresentation directly, or
indirectly, regarding the quality, nature, class, origin or
composition of a dairy product. However, the current Regulations
are slightly more lenient, allowing the use of words such as
"natural," "super" and "extra" or any
other words which suggest that the dairy product is of a special or
particular quality, only if the word or expression is part of a
trade mark. The new R260 eliminates this
exception, prohibiting, outright, the use of words such as
"natural," "super" and "extra,"
"pure" or "fine" or any other words which
suggest that the dairy product is of a special or particular
quality. This has far reaching consequences for dairy product
manufacturers, who incorporate words such as "super" and
"extra" into the names of their products usually as part
of their trade marks. In addition, R260 states
that no registered trade mark or brand name which may possibly,
directly or by implication, be misleading or create a false
impression as to the contents of a container that contains a dairy
product shall appear on that container. It is not clear what this
prohibition would cover. What is clear, is that if producers adhere
to these restrictive provisions embodied in R260,
they are, effectively, being deprived of their legitimate
intellectual property rights.
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