Labeller beware

"This is a very big and contentious issue," says Professor Piet Delport, consul to the Association for Communication and Advertising (ACA). "The new regulations will completely alter the way in which food products are positioned and presented to consumers."

Existing regulations stipulate that food labels cannot make any health claims, and the new regulations take this concept further and outlaw the use of certain words that imply health or nutritional benefits. Commonly used descriptive words such as 'wholesome' and 'nutritious' will thus become illegal on labels and ads when the new regulations come into effect on 1 March 2011. Concerning fortified foodstuffs, food labels can only make nutritional claims if the packaging is in line with separate fortified foodstuffs regulations.

"At present, at least 90% of food advertising contains some sort of health claim," adds Delport. "In future, the wording used on packaging, in marketing material, and in any form of advertisement will have to be very carefully scrutinized to ensure that marketers aren't hinting at health benefits."

In addition, if labels and adverts make comparative claims - such as 'low fat' or 'high fibre' - there is a specific set of requirements that the product must first comply with. Thus, comparative claims will have to be substantiated by proving that the product contains a certain percentage, volume or weight of the specific property being referred to. These types of claims can only be made if the product is compared to another food, and the rival 'product' has to be specified. Furthermore, descriptions or words which refer to the specific way in which a product was prepared (such as 'fresh' or ‘homemade') will also be subject to a lengthy set of guidelines.

The new regulations will not only apply to written material - pictorial presentations and audio will be monitored and subject to regulation. For example, when including pictures of food in marketing or advertising materials/presentations, one has to specify the percentage of the advertised foodstuff in the final product.

Creative challenges

"The new regulations will pose a challenge for people working on the creative side of food marketing and advertising," he explains. "Most of the words and phrases currently used in food advertising make some sort of health claim, and have become almost synonymous with certain brands."

As a result, many food products might undergo a process of rebranding, or at the very least, will have to undergo a major marketing overhaul. According to Delport, food advertising might initially become very bland, as marketing and advertising agencies negotiate the new regulations and find ways to reinvent brand images within the boundaries of the new legal environment.

"We might well see an increase in plain retail advertising, with marketers opting for the safe option to avoid clashing with the new regulations," he says.

Phase two to come

The original regulations published for comment in July 2007 were amended, but certain parts of these regulations, i.e. i) Nutrient Profile Model, ii) Health Claims, iii) Serving Sizes, iv) Marketing of food and alcoholic beverages to children, and v) Dietary Guidelines on labels, were put on hold pending further deliberation and consultation. The exceptions listed above are not part of the regulations published in March - they constitute 'phase two' of the Regulations and will be published as a draft for comment at a later stage.

"Marketing and advertising professionals involved in the food industry are going to have to pay extremely close attention to the new regulations to ensure that their clients are complying. Agencies should seek additional legal advice - at least at the beginning - as this will allow them to gain a more thorough understanding of what can and can't be used,” concludes Delport.