The new regulations relating to the labelling and advertising of foodstuffs (R146 of 2010) which were recently published by the Department of Health ("DOH") will have far reaching consequences for the food industry.

The DOH has indicated that the reason for the legislation is aimed "at ensuring that consumers have access to properly and accurately labelled foodstuffs, which in turn will assist them, in making informed food choices".

The existing regulations stipulate that labels cannot indicate any health claims. However, the new regulations now prohibit certain words that imply health or even nutritional benefits. Words such as "wholesome" or "nutritious" may not be used. There are exceptions to the use of health and nutritional claims but these will have to satisfy certain requirements prior to being allowed.

One of the more interesting provisions in the regulations relates to pictorial representations. A pictorial representation on a label or any advertisement of a foodstuff may not be presented in a manner which is likely to create an erroneous impression regarding the contents of the product. That is, one may not use accompanying items usually associated with a product for the purposes of creating a more attractive impression of a product by, for instance, depicting fruits in a bowl of cereal. Fidell Hadebe, spokesman for the DOH, said in relation to this regulation that "what is on the label or in an advert must be an honest description of what you will be eating"

Furthermore, no one may now make claims which may be construed as comparatives, such as "reduced", "less than", "fewer", "light", "lite" unless certain stringent requirements have been complied with, nor claims such as "more than" or "increased" on beneficial food constituents.

Other far-reaching provisions relate to date marking ("sell by" dates), misleading descriptions, serving sizes and quantitative ingredient declarations.

The new regulations, when coupled with the Consumer Protection Act, may expose manufacturers to both civil and criminal liability. There is no doubt that manufacturers, advertisers and marketing agencies will have to navigate through the minefield of new provisions to find favourable interpretations that will suit their product descriptions without incurring any adverse legal consequences. They have until 1 March 2011 to do so when the regulations come into effect.

This article has been written by Irshaad Moidheen. He is Associate in the Commercial Dept at Garlicke & Bousfield Inc.
For more information contact Irshaad on 031 570 5300.