Trademark portfolios must comply with new labelling regulations

South Africa
The labelling of food has always been governed by the Foodstuffs, Cosmetics and Disinfectants Act 1972 and its regulations. However, these regulations have now been 'tightened up' and modified to keep in line with international trends. As of March 1 2012, all food labels must have been amended to comply with the new regulations.

The purpose of the amendments is to assist consumers in making informed choices about food. The consumer’s right to know has been given priority and plays a vital role in the amended regulations. Consumers should not be misled when making food choices and should have the peace of mind of knowing that the information listed on a label is correct and that there are no misleading descriptions on the packaging.

The ambit of this article will be restricted to a discussion on statements and claims which are now prohibited and which could be regarded as misleading. However, the regulations do cover a host of other requirements and it is recommended that food manufacturers take advice from labelling experts to ensure that their labels comply with the new regulations.

Regulation 13 provides for “prohibited statements” - food labels and advertisements may not contain the following:
  • words, pictures, marks or descriptions which create the impression that the food is endorsed by a health practitioner;
  • any words, pictures, marks or descriptions which create the impression that the foodstuff is endorsed by, or has been manufactured by or in accordance with recommendations by an organisation, unless approved the director general and unless proof is supplied that the organisation is involved in generic health promotion;
  • an endorsement or testimonial of an individual in any form if that endorsement or testimonial implies a nutrition claim;
  • an endorsement in the form of any logo, mark, symbol or statement relating to the nutritional or safety properties of the food, unless that endorsement complies with the provisions of the regulations and appropriate substantiation can be provided within two working days;
  • the words 'heath' or 'healthy' or any other words or symbols implying that the foodstuff in and of itself has heath-giving properties;
  • the words 'wholesome' or 'nutritious' or any other word with a similar meaning;
  • a claim that a foodstuff provides complete or balanced nutrition;
  • the word 'cure' or any other medicinal claim, subject to the amended provisions of the Medicines and Related Substances Act.
Food manufacturers will now have to steer clear of the 'old faithful' claims such as 'healthy', 'wholesome' and 'nutritious'. Importantly, these prohibitions extend to the use of trademarks, as well as descriptive terms. Therefore, trademark portfolios will need to be carefully scrutinised to ensure that there is compliance with Regulation 13.

Regulation 47 provides for “misleading descriptions”. Products which are linked to specific protocols registered with the Department of Agriculture in terms of the Agricultural Products Standards Act or National Regulator for Compulsory Specifications Act can contain on their packaging claims such as 'grain fed', 'grass fed', 'Karoo lamb', 'natural lamb', 'country reared', 'free range', 'pure' and 'organic'.

However, products which are not regulated in terms of these acts may not contain statements to the effect of being fresh, natural, pure, traditional, original, authentic, real, genuine, homemade, farm house, handmade, selected, premium, finest, quality or best, or any other words or pictures which convey similar concepts, unless they are compliant with the UK Food Standards Agency (FSA) criteria for the use of such terms in food labelling.

In broad terms, the FSA guidelines provide that “foods should be sold without deceit and should be labelled and advertised so as to enable the prospective purchaser to make a fair and informed choice, based on clear and informative labelling”. This criterion needs to be applied when considering which words may be used in relation to food products - whether as a brand/trademark or in a descriptive sense. At all times, it must be clear that consumers are able to make a fair and informed choice based on the content of the labelling. In addition, the manufacturer must be able to substantiate any claims that are made on the packaging.

Megan Reimers, Spoor & Fisher, Pretoria

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