Food labelling in SA was given a much needed overhaul in 2011 with the introduction of new regulations relating to the labelling and advertising of foodstuffs, replacing outdated seventies-era regulations.
It was always intended, however, that the 2011 regulations would eventually be supplemented by “Phase 2” regulations dealing with, amongst other things, glycaemic index (“GI”) claims, health claims and the introduction of a nutrient profiling model suitable and applicable to South African conditions.
Phase 2 is now on its way with new draft regulations having been published for comment by the Minister of Health (“Minister”) in May 2014. The draft regulations will replace the current regulations in their entirety.
Depending on your viewpoint, there are a number of positive and negative aspects in the draft regulations:
- GI and glycaemic load claims will now be regulated. On balance, this is a welcome inclusion in the draft regulations. Up to now, manufacturers have been left to their own devices in relation to these types of claims (albeit that many manufacturers voluntarily complied with international GI norms and standards or sought the approval and endorsement of the GI Foundation of South Africa (GIFSA)). Going forward, GI must be determined in accordance with ISO 26642. This will have a cost implication, particularly on smaller manufacturers.
- There are stricter requirements for health promotion entities to endorse foods. Currently approved bodies such as GIFSA, Diabetes SA and the Heart and Stroke Foundation of South Africa would now need to also prove that they are independent of, free from influence by, and not related to the supplier or manufacturer of the food being endorsed and that the foods being endorsed are fully compliant with all applicable regulations published under the Foodstuffs, Cosmetics and Disinfectants Act (“Foodstuffs Act”).
- Endorsements by specific religious entities are prohibited, unless food business operators (defined to mean food manufacturers, sellers or importers) give consumers “their constitutional right of freedom of choice”, by making such foods without any particular religious endorsement available on the shelf at all times. Although the wording of this regulation is somewhat ambiguous, to the extent that it could be interpreted to mean that food manufacturers and importers of products such as Halaal or Kosher marked products must also sell unmarked products into the supply chain, it could be argued that the regulation is unfairly discriminatory, in breach of the right to freedom of religion (including religious practices, observances and rites) and could potentially mean that products would be labelled in a misleading manner. Similarly, if the regulation is intended to require retailers of Halaal or Kosher products to also stock similar products that do not bear a religious endorsement, the regulation may again be unfairly discriminatory and contrary to the right of freedom of religion. It is also unclear what provision of the Foodstuffs Act grants the Minister the power to create this type of regulation.
- Nutritional information will be mandatory on all food labels, subject to limited exceptions (such as foods with very small packaging and home industries foods). The values which are considered to be minimum mandatory nutritional information are energy, protein, glycaemic carbohydrate, total sugar, dietary fibre, fat, saturated fat and total sodium.
- It will be prohibited to include a complementary medicine as an ingredient in a food if its presence is indicated by its brand name in the list of ingredients or anywhere else on the label. Foods also may not include any substances that are scheduled under the Medicines and Related Substances Act, save for vitamins and minerals at certain levels.
- The maximum mass and volume of single servings of all different types of foodstuffs have been prescribed. By way of example, the maximum single serving size for butter and margarine is 10g and for combination dishes measurable with a cup (such as chili or a stir fry) it is 250mg.
- Energy, nutrition, ingredient content and health claims will not be permitted on the labels or advertisements of foods unless the food complies with, amongst other things, the requirements of the nutrient profiling model which will be accessible on the Department of Health’s website. This regulation is likely to reopen the debate as to whether foods should in fact be categorised as “good” and “bad”, as opposed to there simply being some products that should be enjoyed in moderation.
- Tables of approved wording for function claims and reduction in disease risk claims are provided (claims that describe the physiological role and function of a nutrient or a substance in growth development and normal physiological functioning of the body). Provided that a food meets the requirements for one or more of these claims, the claims may be used. The prescribed claim wording may, however, not be deviated from.
- The draft regulations will introduce severe restrictions on the marketing of foods to children. So-called “unhealthy foods” may not be marketed to children, for example the use of child actors (18 years or younger), sport stars, celebrities or cartoon-type characters in advertisements. One interesting provision in the draft regulations states that “food business operators shall not abuse positive family values such as portraying any happy, caring family scenario, in order to advertise unhealthy foods”.
Although many aspects of the draft Phase 2 regulations are to be welcomed, as they will allow consumers to assess foods on an “apples for apples” basis, a number of other provisions appear to be somewhat paternalistic rather than empowering. In any event, it is clear that the new regulations will have material cost implications for manufacturers who may feel a bit hard done by after the 2011 overhaul that is still in recent memory.