South Africa: Taking A Bite Out Of Counterfeit Food Products

Last Updated: 29 March 2017
Article by Farrel Frank

Handbags, sunglasses and clothing are common examples of counterfeiters' ideal items; however, and perhaps surprisingly, the threat of counterfeit foods is also on the rise in South Africa despite efforts by the South African Police Service (SAPS) and Department of Customs and Excise (Customs) to combat it. With South Africa's current tough economic climate which has seen price increases affect consumer purchases, particularly on food products, counterfeiters are seeing the country as an ideal target.

Counterfeit food products pose a serious health risk to the unsuspecting consumer and also potentially harm the brand and reputation of the original owners trade mark.  Health risks come about when conterfeiters bypass safety measures to save on manufacturing costs, using substitution to include a variety of harmful ingredients which may cause serious illness or even fatalities. Substituted ingredients may include unrefined recycled oils, animal waste or by-products, plastics or resins as well as dangerous or prohibited chemicals.

When it comes to establishing whether an item is counterfeit, consider the price as this is often a good indicator. If the price is too good to be true, it probably is. In addition, the packaging should trigger alarm if it appears different or even inferior to the original product. Strange tastes, textures and smells are other indicators that the products could potentially be counterfeit while expiration dates also play an important role. In terms of South African legislation, all consumable products must display a best before date and any product not bearing this date or an expired date should be avoided or queried with the brand or store owner.

Consumers who have been affected by the inferior products will naturally hold the original manufacturer's liable for either the inferior quality of the product or subsequent illness after consumption. This is severly damaging to their brand and will have lasting reputational and financial repurcussions.

Distributors, suppliers and retailers need to be aware of the potential of counterfeit products under their brand while counterfeiters should take heed that in terms of Section 2 of the Counterfeit Goods Act 37 of 1997, the possession, manufacture, sale, offering for sale, distribution, exhibition to the public for the purposes of sale and importation of counterfeit products are prohibited and constitute offences. Those falling foul of the Counterfeit Goods Act may face both civil and criminal proceedings being instituted against them by the proprietors of the authentic products for their contraventions of the Act.

There is no quick fix recipe to protect against counterfeit foods products. South Africa is, however, one of the few African Countries where the enforcement of intellectual property (IP) rights is both possible and relatively affordable for brand holders. It is also one of the few African countries that makes provision for brand recordals with Customs. Brand holders need to register their IP Rights, being their registered trade marks and copyrighted works, with Customs. Once this application is in place, Customs will be empowered to monitor all ports of entry (harbours, ports, airports and border posts) and detain any suspected counterfeit goods bearing the proprietors trade marks or copyrighted works.

Proprietors should register their trade marks in all territories of interest, being territories in which they intend to trade to ensure that they are able to enforce their rights should infringements arise. While there are alternative measures that may be relied on in instances where the marks are not registered, a trade mark registration makes it easier to enforce ones IP Rights either civilly or criminally, should search and seizure (raids) be conducted by the SAPS.

Proprietors should further take all steps necessary to ensure that the sale of their products by third parties is strictly monitored with customer complaints being taken seriously and investigated for possible counterfeits.

The responsibilities of the third parties include taking all reasonable steps to ensure that the products they purchase and supply are authentic. These steps include vetting their source and suppliers to ensure that they are authorised, conducting searches at the Trade Marks Office, and/or making enquires with the trade mark proprietors or their agents to ensure that the suppliers and goods are authentic.

Failure to take reasonable steps, not limited to those mentioned, may result in the distributors, suppliers and retailers being presumed to have guilty knowledge or knowledge of the wrongfulness of their actions which may result in criminal prosecution.

While the SAPS, Customs and Brand holders take proactive steps to eliminate the threat of counterfeit food products, the consumer also needs to exercise reasonable caution when purchasing food products and fast moving consumables. Consumers must avoid knowingly purchasing counterfeit or infringing products which will assist in reducing the demand for these illegal products.

Originally published on 16 April 2016

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.

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