New regulations on infant food will remove existing trademark rights

According to the World Health Organisation (WHO), there is a close link between social and economic development and infant and young child nutrition. In the 1980s, the WHO adopted a code relating to infant and young child feeding to promote the health and nutrition of infants and young children. As a member state to the WHO, on December 6 2012 South Africa issued the Regulations Relating to Foodstuffs for Infants and Young Children to codify its previous voluntary application of the WHO code. 

The regulations control information which is disseminated to the public related to the feeding of infants and young children, and limit the advertisements and promotional and educational material that manufacturers and retailers of these products can provide to the public. The regulations place strict controls on the labelling of baby food products and specify in detail the information which may and may not be included on baby food labels.

The regulations have a direct impact on trademark owners as they prohibit the use of certain words, graphics and claims on the product labelling, regardless of whether the prohibited matter serves a trademark function or not. As an example, the regulations prohibit the use of any logos which incorporate pictures of infants or young children. Consequently, if a baby food manufacturer is the owner of a registered trademark which consists of a picture of a baby, it may no longer use that registered trademark on its baby food products.

Below are highlighted some of the provisions which will have a wide-reaching impact on baby food manufacturers and distributors:

• The regulations provide that no foodstuff other than formula may be imported into, or sold in, South Africa if it is intended for consumption by infants younger than six months of age.
• The labelling may not contain any pictures, photographs or drawings of infants, young children or even forms that resemble them, such as humanised animals.
• Specific requirements are set for the labelling of infant formula. The following information must, for example, appear on the front panel of the container:
  • An age range should be specified.
  • The statements “Does not contain breast milk” and “breast milk is the best food for babies” must appear on the front panel.
  • The statement “This product shall only be used on the advice of a health professional” should appear on the front panel.
  • The statement “This product is not always sterile and may contain harmful micro-organisms. It must be prepared and used appropriately” must also appear on the front label.
• The following requirements are set for foodstuffs and beverages (other than formula) which are intended for consumption by babies or young children: 
  • The suitable age range should be indicated on the front panel.
  • The front main panel of the label must contain the following statement: “This food is not intended for infants under six months of age and early introduction is not recommended”.
  • The following statement should also appear on the main panel: “From six months of age, together with breast milk, infants should be fed a variety of foods. Ask a health worker or health professional for advice”.
  • The following expressions (or any expression which conveys a similar meaning) may not be used: “Materialised”, “humanised”, “breast milk substitute” or any derivative form of these terms.
  • No expressions or terms that could be understood by consumers to identify a product as suitable to feed infants younger than six months, such as “First Growth”, “First Food”, “From the Start” and “Best Start in Life”, may be used.
• No statement or claim may be made on the label which conveys the message that the specific product represents itself as an expert with regard to infant and young child feeding or nutrition. 

Trademark owners are required to review their product packaging to ensure that their products comply with the regulations. The regulations expressly remove existing trademark rights with the intention of promoting healthy nutrition habits with respect to babies and young children. While certain of the provisions of the regulations will clearly achieve this goal, it is questionable that the use of, for example, a picture of a baby on a baby food product can be detrimental to the baby. 

Certain of the provisions seem, in other words, extreme and disproportionate to the possible harm which the regulations are intended to ward against. This alone seems reason to question the enforceability of such provisions. In addition, though, it is questionable that it is constitutional for the legislature to remove existing property rights in the manner which it does under the regulations. Many trademarks, which are valuable assets of manufacturers, may be stripped of their value as a result of the regulations. It remains to be seen whether any manufacturer will decide to test the enforceability of these provisions to retain brand value.

Non-compliance with these regulations amounts to a criminal offence and the penalty ranges from the imposition of a fine or a period of imprisonment, depending on whether the guilty party is a first time offender. Additionally, any offending product will be forfeited to the state and destroyed or dealt with as the director-general may direct.  

The regulations specifically relating to the labelling of baby food products are effective from December 6 2013.

Manufacturers, distributors and retailers must, within 18 months of the date of publication of these regulations - ie, by June 6 2014 - remove all non-compliant products from the market.

Megan Reimers, Spoor & Fisher, Pretoria