Labelling hazards for manufacturers

Food should be sold without deception and should therefore be labelled and advertised in such a manner to enable prospective purchasers to make fair and informed choices, based on clear and informative labelling and advertising. The use of marketing terms should not be ambiguous, imprecise or misleading and create a false impression as to the nature or quality of the product.

Pictures and illustrative representations on labels and advertisements, leaflets and on websites can have powerful effect on prospective purchasers and may have the same significance than descriptive terms on purchasers. These representations should therefore also be subject to the same scrutiny and control as the words to portray similar images and concepts.

Food manufacturers are thus required to pay greater attention to what will appear on food labels and advertisements, by providing accurate and honest information about their products. This information will in turn empower consumers to make informed choices regarding the range of health and nutritional options found in a variety of food products.

Some of the aspects covered by the regulations relate to prohibited and misleading statements on food labels and in respect to the advertisement of food products. These regulations will impact heavily on how manufacturers describe and market their products to the public at large.

Prohibited Statements

Unlike the current regulations, which prohibit the making of any health claims on food labels and advertisements, the new regulations take the issue much further, as they effectively put an end to the use of certain nutritional claims on labels and in advertisements.

The following are now outlawed in terms of the regulations:

• use of common descriptive terms such as "healthy", "health", "wholesome", "nutritious", "rich in", "complete or balanced nutrition", "enriched", "good source of", "suitable for diabetics", "cure" or any other medicinal claim. The use of these words or any other words with similar meaning are prohibited because they could give an impression that the product in question has health giving properties and/or can heal any medical condition which no other food products possesses. Any suggestion that the product advertised has certain qualities that similar products do not possess will not be allowed.

• use of statements to the effect that the product is endorsed or supported by:

  • a health practitioner or a body of health practitioners such as doctors, dieticians dentists, etc. Accordingly a statement such as "recommended by a doctor" will fall foul of the regulations.

  • organisations, associations, foundations and other entities (excluding religious certifying organisations or any Fauna and Flora related certifying and endorsing bodies), unless approved by the Director General in the Department of Health. In this case the particular organisation must provide proof that it is involved in generic health promotion which is supported by factual scientific evidence regarding the nutritional claims. Endorsements to the effect that a product is Halaal or Kosher, if truthful, would not be problematic.

• an endorsement or testimonial by an individual when it implies a nutritional claim, e.g. a famous sports personality when used to endorse a particular product cannot say that it helped him to perform optimally because of its nutritive content.

Misleading descriptions

Regulation 13 of the current regulations deals with misleading descriptions and more specifically with the use of the term "natural" on the labelling of foodstuffs.

While the regulations have, historically, always defined statements that may not be made in relation to goods, according to Section 15 of the Act, the Minister may make regulations prescribing, inter alia, the standards for the composition, strength, purity or quality or any other attributes of any foodstuffs.

The Department of Health has incorporated guidelines for misleading claims on the labelling and advertising of foodstuffs from the UK Food Standards Agency ("the UK Guidelines"). The UK Guidelines not only deal with the use of a word and phrases but also deal with the use of pictures and illustrative representations. Therefore, the label as a whole, i.e. the words and pictorial representations should be assessed to determine whether it is misleading.

The UK Guidelines relate to the use of the terms "fresh", "natural", "nature's", "pure", "traditional", "original", "authentic, "real", "genuine", "home-made", "farm house", "hand-made", "selected", "premium", "finest", "quality" or "best" and place restrictions on their use and give criteria for determining if the use is permitted. These claims are also incorporated in the provisions of the new regulations that deal with "misleading descriptions".

Regulation 47 of the new regulations deals with misleading descriptions and has expanded the list of misleading descriptions to include the above mentioned terms. In terms of provision 47(2), one may use these words in the case of foodstuffs provided that the criteria specified in Guideline 8 to the regulations are satisfied. Guideline 7 specifies the UK Guidelines on the criteria for the use of the above mentioned terms in food labelling and is applicable in South Africa.

Regulation 47 does, however stipulate that products that are governed by the Agricultural Product Standards Act of 1990 would not have to comply with the provisions of this Regulation and, by extension, to the UK Guidelines. This may cause some confusion in the application of Regulation 47, as, for example, dairy products are covered by the Dairy and Imitation Dairy Product regulations of the Agricultural Product Standards Act and, therefore, may not have to comply with the UK Guidelines on misleading claims. This could have repercussions for that industry.

Therefore, in future, statements such as 'Pure Fruit Juice, Farm House Boerewors, Original Chicken Dinosaurs, Garden Fresh, Ocean Fresh, Freshly Baked, Natural Yogurt, Natural Goodness, Nature's Way, Traditional Christmas Pudding, Original Flavour Chips, Real Fruit Juice, Authentic Indian Curry Paste, Home-Made Rusks' etc. should be approached with caution. It would be advisable and highly recommended to obtain advice from a regulatory expert before using these or any similar claims to avoid complications at a later stage.