In part 2 of this article we quiz Janusz on how the CPA has affected food labelling and the controversial issue of genetically modified foods.
Linda: There has been a lot happening regarding food labels since the promulgation of the CPA.
Janusz: Indeed, the Act makes provision for portions of labels for which no prescribed format exists, marketing materials, and the like, plain language must be used such that it is reasonable to conclude that an ordinary consumer of the class of persons for whom the notice, document or visual representation is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance and import of the notice, document or visual representation without undue effort.
The Commission will eventually publish guidelines on when the plain language requirement has been met. In the context of foodstuffs it is believed that where any statements as to the benefits of the product or special characteristics of the product are advertised or appear on labelling, great care must be taken to ensure that consumers will understand the content, significance and import thereof.
Linda: We know that certain GM foods are allowed according to South African legislation. There is a lot of controversy on GM foods. Does the CPA address labelling of these foods?
Janusz: Further to what has been stated about the plain language requirements, the Act also makes provision for specific goods, such as grain products, to be the subject of regulation under this Act in so far as trade descriptions are concerned, so that the country of origin, the ingredients used, the manufacturing processes employed, the name and address of producers of imported products, and the presence of GM ingredients in the goods be disclosed on the label thereof. However, this provision will only apply to goods once they have been called up by the Minister and only to the extent of the call up. Currently it appears that Maize and Soy require GM labelling where the GM content of a product is in excess of 5 mass%.
Linda: What is the intent of the labelling, marketing and advertising requirements of the CPA?
Janusz: There is a prohibition of any and all misrepresentations to consumers, whether direct or indirect, and a supplier has the duty to correct any misunderstanding by a consumer expressed to the supplier. Numerous examples of situations where misrepresentation is taking place are listed in the Act and these include claiming product is available when it is not, has a certain characteristic when it does not, and has a price advantage over other products when this is not the case. In addition, advantage may not be taken of consumers who are unable to look after their own interests due to illiteracy, blindness, deafness, inability to understand a language, age, and the like. This provision goes further than the prohibition on health and other claims on foodstuffs in terms of the Food Labeling legislation and false or questionable "wellness" claims on foodstuffs and on products not effectively regulated under other laws at present, such as food supplements and complementary medicines will need to be substantiated by scientific evidence or be removed from marketing, advertising and labelling in order to avoid being charged with a prohibited conduct under the Act.
About the Author
Janusz F. Luterek, Pr.Eng for Hahn & Hahn Attorneys
For advice on compliance and other legal issues in the food industry contact Janusz Luterek at firstname.lastname@example.org - your food lawyer.
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