R429: Expert insights on SA’s new draft food labelling regulations post the comments period

The three-month period for comments on R429, SA’s new draft labelling regulations closed a month ago. By all accounts, the Dept of Health must be sifting through a tome of input from many affected constituents who have expressed alarm, concern and doubt about several aspects of the proposals. Here is some expert opinion on the issues…


Nigel-Sunley  NIgel  Sunley: Consulting in Food Labelling 

I have no idea how many submissions were actually made but I suspect there were many, maybe as many as was the case for the R642 proposals in 2007 (>100).
I have seen those from CGCSA, ADSA / NSSA and SAAFoST (I prepared the SAAFoST one myself with assistance from Moira Byers) and a number of individual company submissions (which I cannot discuss due to confidentiality issues). The CGCSA, ADSA / NSSA and SAAFoST submissions are, however, at least partially in the public domain (eg the SAAFoST one is on the SAAFoST website).

Some of the key issues highlighted are:

  1. Regulation 4 which effectively prohibits any information not permitted under R146 – this places huge constraints on manufacturers and is certain to be opposed on legal grounds. In practice it would prohibit things like telephone numbers, consumer help lines, website details, recipes and other common information which is not however mentioned in the regulation.
  2. Regulation 9 dealing with CAMS that really only serves to propagate the total confusion that exists in the interface between food, medicine and supplements.
  3. Regulation 16 (1) (b) relating to religious endorsements which is a commercial and logistical nightmare apparently initiated by Christian fundamentalist groups. Completely unworkable and will be strongly opposed.
  4. Major concerns over certain brand names and trademarks for which Regulation 16 (2) will require those with health or nutrition connotations to be changed.
  5. Tricky implications of Regulation 34 which requires any graphics of foods not actually found in the packet (eg biscuits used on a cheese label) to only occupy 20% of the area of the graphic. Graphic designers’ nightmare!
  6. Requirement for compulsory nutritional information (Regulation 52) generally welcomed.
  7. Major frustration over DoH’s pig-headed insistence on retaining glycaemic carbohydrate in nutritional information, in spite of it being completely out of line with every other country in the world and Codex!
  8. Confusion over Regulation 52 (15) relating to foods for special occasions – well-meant but impractical in its present form.
  9. Frustration over maximum values for %NRV per serving of vitamins and minerals (Regulation 53 (6)as these are not necessarily aligned with data for tolerable upper limits, particularly for minerals.
  10. Provisions for Front-of-Pack labelling (Regulation 53 (9) need better alignment with global practice.
  11. Major concern with Regulation 53 (11) which prohibits claims for any products containing added fructose, non-nutritive sweeteners, caffeine, fluorine and aluminium. Proposed prohibition on non-nutritive sweetener containing product claims is particularly unacceptable as it effectively encourages greater consumption of carbohydrate sweeteners and proper scientific justification for it does not exist. It appears to be motivated by personal opinions of certain DoH staff.
  12. Provision for nutrient function claims (Regulation 57) generally welcomed but nutrition and dietetics community is challenging the lack of evidence base for some of the claims.
  13. Lack of provision for assessment of claims, other than those related to slimming, does not make sense. Very little sympathy with lack of DoH resources in this area, particularly when there are many claim approvals from credible assessment bodies elsewhere in the world, such as EFSA, that just need local rubberstamping.
  14. Huge concerns over Regulation 65 and Guideline 14 relating to marketing to children. Guideline 14 is seen as completely over the top in terms of practicality and enforceability; it is badly worded, often questionable in terms of scientific substantiation and in need of major revision, notwithstanding its generally well-intended objectives.
    The highly politicised and finger-pointing introduction to Guideline 14 is seen as completely inappropriate and has seriously antagonised the food industry.
  15. The whole legal status of the Guidelines is being questioned in terms of their supposed function as backup information and guidance rather than the highly prescriptive tone of some of their content, particularly in Guideline 14. The view is that any specific prescribed, rather than advisory, requirements should be regulations and not guidelines. The clause enabling the content of guidelines to be changed at the whim of the DoH without any consultation is a major concern.

In general R429 is seen to contain some very good and helpful provisions, but there are certain components that need major revision otherwise we shall undoubtedly see formal legal challenges to some of the more radical provisions if they are carried over to final regulations in unchanged form.

There is also concern regarding the way forward, as DoH’s past track record on proper consultation with technically capable people when finalising regulations is not very inspiring. There is concern that only a three-month period for comment was allowed for what are very complex proposals. There is, however, an indication from DoH that they are prepared to convene working groups on key topics and it is hoped that these will actually materialise.

Above all, there is concern that DoH will try to fast-track finalisation of the regulation. This would be a disaster unless proper consultation takes place as it would result in poor quality regulations that will be challenged on legal grounds. Government’s track record in all areas of rushing through bad legislation which then has to be amended is a major concern.

Janusz Luterek  Janusz Luterek: Partner at Hahn & Hahn Attorneys 

There were a lot of comments from many companies and institutions, some were very technical and some quite legal in nature.

From my perspective, one of the thorniest issues is the prohibition on the continued use of well-known trade marks which imply health claims or which include a nutrient or allude to nutrients. This prohibition is tempered to some extent by Regulation 53 (2) which provides for the use of trade names which imply a health claim if such a health claim could be used on the packaging.

A second contentious issue is the provision around religious endorsements which states that if you sell religiously-endorsed foodstuffs, such as Halaal and Kosher, then you must at all times have the same product in unendorsed form available for sale. If this goes ahead then all supermarkets would have to dramatically increase their shelf space, additional packaging designs will be required, and the result may be that many Kosher and Halaal products are simply discontinued. What would happen to Kosher butcheries, Halaal buthcheries etc is open to speculation.

Thirdly, a very contentions regulation is Regulation 65, which together with Guideline 14 prohibits the advertising to all children up to age 18 of all unhealthy foodstuffs, as defined in the Guidelines. This prohibition is very far reaching and includes a prohibition on all forms of media from 6 am to 21h00, seven days a week!

Finally, the whole issue of Guidelines and their use to regulate is a hot topic under R429 as many important issues are dealt with superficially in the Regulations and which are then fleshed out in the Guidelines. In my view, you cannot regulate through Guidelines and these critical issues should be in the Regulations, with the Guidelines guiding on the compliance with the regulations.

 Andrew Allison, IAB’s head of Regulatory 

(Interactive Advertising Bureau (IAB) South Africa, formerly the DMMA, represents 200 online publishers, creative, media and digital agencies, brands and educators)
While lauding the Dept of Health’s commitment to tackle the threat of non-communicable diseases in children, the IAB joins other industry bodies in taking issue with the its attempts to regulate the marketing activities of the South African food and beverage industry.

Unfortunately, the Regulations are unduly onerous and flawed. However, we have made it clear in our submissions that the IAB is open to working with the Dept to find viable alternatives to set reasonable limits and exacting standards for self- or co-regulation.

The proposed Regulations amount to an unlawful limitation on the Constitutional freedom of commercial speech afforded to all the affected parties, which includes the entire IAB membership base. The Regulations just do not meet the criteria set out under Section 36 of our Constitution which puts forward that there must be a reasonable relation between the limitation and its purpose, as well as proper consideration given to less restrictive means to achieve its purpose.

With a Code of Conduct that is aligned with international best practices, and an established Regulatory Portfolio to address consumer complaints and deal with transgressions of its Code of Conduct, the IAB is of the view that rigorous self-regulation by the advertising industry is a viable alternative to criminalising advertising and marketing businesses which may play a part in the transgression of the proposed Regulation.

It’s also of great concern to the IAB that the Regulations demonstrate an overall lack of understanding of the digital industry and the manner in which digital communications, transactions and interactions are transmitted and received. The digital industry and the very nature of digital communications are incredibly dynamic, fluid and complicated; for this reason, governments the world over are ill-equipped to effectively and efficiently regulate them.

If the Regulations come into being, South African children would be limited in their exposure to local brands marketing unhealthy foods and beverages; however, when it comes to the online environment they would continue to be fully exposed to the marketing of international competitors, creating an unfair bias against the South African food and beverage industry and its supply chains.

The IAB South Africa has appealed to the Dept of Health to conduct a full regulatory impact assessment and communicate the findings publicly; as well as to engage with the affected industries in the form of public hearings.