Navigating Health Claims On Food Labels In South Africa

Over the past few years, consumer interest in certain "better-for-you" foods has surged. Google search interest in sourdough spiked globally during the COVID pandemic and has continued to increase steadily since, with interest in other healthy foods such as chia seeds and collagen rising in a similar manner. As manufacturers innovate to meet this demand, some may be tempted to make bolder claims around health benefits, including digestibility, fibre, gut health and blood sugar. Some manufacturers may even wish to entice consumers through comparative claims, to convince consumers that their products are healthier than others on the market by containing less sugar or more dietary fibre. That is precisely where the law gets exacting, and where careful label strategy becomes a competitive advantage.

The Foodstuffs, Cosmetics and Disinfectants Act

South African food labelling law is anchored in the Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972 ("FCDA"). Section 5 of the FCDA prohibits false or misleading descriptions about a product's origin, nature, composition, quality or nutritive value.

Against that backdrop, regulation 13 of the 'Regulations: Labelling and advertising of foodstuffs' (GNR.146 of 1 March 2010) published in terms of the FCDA ("R146") provides that certain statements may not be reflected on the label or advertisement of a foodstuff. Statements prohibited under regulation 13 include, amongst others, the following:

• the words "health" or "healthy" or other words or symbols implying that the foodstuff in and of itself or a substance of the foodstuff has health-giving properties;
• the words "wholesome" or "nutritious" or any other words with a similar meaning;
• a claim that a foodstuff provides complete or balanced nutrition; and
• (subject to the Medicines and Related Substances Act 101 of 1965), the word "cure" or any other medicinal claim, including therapeutic claims.

Any claim that sourdough is healthy or nutritious, chia seeds improve blood sugar control, or collagen cures skin ailments is therefore prohibited on the label or advertisement of a foodstuff. Additionally, regulation 52 of R146 provides specific requirements for nutrient content claims to be made in advertisements or on the label of foodstuffs. In this regard, claims may only be made if:

• they use the prescribed wording; and
• the foodstuff contains the prescribed level of nutrients required for each claim to be made.

By way of example, a claim that sourdough bread or chia seed buns are "high in dietary fibre" would require the products to contain at least 4.8 grams per 100 grams of dietary fibre, or 6 grams per 100 grams of dietary fibre (depending on which prescribed method was used to calculate dietary fibre content). Similarly, a claim that a collagen smoothie is "high in protein" may only be made if the product contains at least 5 grams of protein per 100 grams.

According to section 18 of the FCDA (read with section 1(1)(a) of the Adjustment of Fines Act 101 of 1991) upon a conviction of an offence for the first time under the FCDA, a person may be subject to a fine not exceeding R20,000.00 or imprisonment for a period not exceeding six months. A second or subsequent conviction may lead to a fine of up to R40,000.00 or one year of imprisonment, or a fine of up to R80,000.00 or two years of imprisonment, respectively.

The Consumer Protection Act

In a similar fashion to the FCDA, section 41 of the Consumer Protection Act 68 of 2008 ("CPA") prohibits false, misleading or deceptive representations. Accordingly, claims which are subjective and not likely to mislead consumers (such as "the most delicious chia seed drink in South Africa") are permitted, while claims which are objective (such as "less oil than other sourdough loaves") would need to be substantiated or appropriately disclaimed to avoid misleading a consumer.

The Code of Advertising Practice

Additionally, the Advertising Regulatory Board, through its Code of Advertising Practice Section II – General Principles ("ARB Code"), regulates advertising among its members and provides guidance for non‑members. Clause 4.1 of the ARB Code provides that advertisers must hold documentary evidence in order to support all claims which are made in relation to products. Where documentary evidence is held in support of a claim, such evidence should be up to date and current.

Clause 4.2 of the ARB Code also permits puffery (an exaggerated, non-measurable statement couched as an opinion about goods or services), which is acceptable when it is an expression of opinion, but unacceptable when it could be viewed by consumers as an expression of fact and therefore mislead consumers. Puffery such as "We make the best collagen protein shakes in the world" would therefore be permitted.

While disparagement of competitor foodstuffs is accepted in countries such as the United States of America, clause 6 of the ARB code requires advertisements to not attack, discredit or disparage other products. For example, an advertisement for a chia seed drink should not claim that the product "contains more chia seeds than x competitor". The packaging or advertisements for sourdough bread or collagen protein shakes should also avoid statements such as "tastier than the products sold by x competitor". Nevertheless, clause 7 of the ARB Code permits comparative advertising which must, inter alia, be substantiated and contain objectively verifiable claims.

A glance ahead: draft regulations and front‑of‑pack warnings

The draft 'Regulations Relating to the Labelling and Advertising of Foodstuffs' (R.3337 of 21 April 2023) ("R3337") propose mandatory front‑of‑pack warning logos for foodstuffs that exceed set cut‑offs for added sugar, saturated fat, or sodium, or that contain any added artificial sweetener. If the requirements contained in R3337 are brought into law, 'better-for-you' products like sourdough breads that nevertheless contain high added sodium levels, or chia seed drinks or protein shakes with added artificial sweeteners would have to display prominent warnings on the front of pack. Furthermore, such products would be restricted from making claims with a health or nutrition message or marketing to children (for example, by depicting any celebrities, sport stars or cartoon-type characters). These changes would impact many manufacturers, requiring them to remove artificial sweeteners from, or lower the added sugar, saturated fat, and/or sodium levels in their products. Alternatively, they would be required to rebrand by removing health claims and ensuring that their products are not advertised to children. In this regard, the packaging of a sourdough loaf containing high added sodium levels or a collagen protein shake containing added artificial sweeteners would be required to bear the prescribed warning and would not be permitted to depict any culinary celebrities or fitness sports stars.

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.