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Nigel Sunley

SA’s food labelling regs – what comes now?

Well, here we are with our new R146 Labelling and Advertising Regulations having been part of our lives since March 1, 2012. No, the sky has not fallen, but an awful lot of work has been done by a great many people and companies to ensure compliance and an awful lot of money has been spent as well. It certainly begs various questions: Was it all worth it? What is the practical impact? What happens next?

Nigel Sunley, one of the foremost labelling experts in SA, gives his answers.

The first two questions can really be combined into one. Yes, it was worth it as there was a dire need for an update of existing regulations and, notwithstanding some notable inadequacies in certain areas (I think most of us involved in implementing R146 will get carried off in straitjackets if we hear the words “glycaemic carbohydrate’’ again!), it can be said that there is a vast improvement in the quality of information now being supplied to consumers and it is now up to those same consumers  and the people providing advice to them such as consumer helplines and dieticians to make proper use of that information.

What is, however, disappointing is the large number of non-compliant labels still around and the seeming complete lack of enforcement of R146, not only by municipalities but also as reflected by the apparent unwillingness of companies to complain about illegal labelling and advertising by their competitors, presumably on the grounds of not wanting to rock the boat – this attitude really pays lip service to the much trumpeted self–policing approach to enforcement.

It would be nice to see a few high profile formal prosecutions or Advertising Standards Authority rulings to demonstrate that the regulations actually have some teeth. Maybe by the time you read this, it will have happened – it is certainly much needed.

But, of course, the big question is what will come next. The Department of Health made it clear that R146 was very much a Phase 1 exercise that tackled the simpler and less contentious aspects of food labelling and advertising and that a Phase 2 would follow which tackled the much more complex issue of health and nutrition claims.

Nutrient profiling –  a partial certainty

It is time for some crystal-ball gazing as we still have no published draft of Phase 2 for review and comment. In the meantime we have a combination of partial certainty and uncertainty to deal with in this area.

The partial certainty resides in the almost definite introduction of nutrient profiling as a screening mechanism for determining which products will be permitted to make claims in the first place, by assessing their overall nutritional quality and preventing what I term as “nutri-washing’’ ie where a product of poor nutritional quality is effectively sanitised by addition of micronutrients or other potentially beneficial substances that ostensibly improve its overall nutritional quality without any improvement in the fundamental acceptability of the product.

Nutrient profiling is intended to prevent this and a great deal of effort has been put into it by a team at Northwest University who were tasked by the Department of Health to put together a draft scheme for comment.

It has to be said that, notwithstanding initial scepticism from many of the people potentially on the receiving end (including, I will admit, myself), they have really done a very good job and also conducted an excellent consultative process which should be duly noted by the Department of Health as a model for future exercises of the sort, the end result of which is a draft proposal from which nobody can claim they were excluded in terms of input.

The proposed scheme, based on a process adopted by Australia and New Zealand, is simple, unambiguous and appears to be scientifically pretty sound.

No doubt there will be some mutters about its fairness, but if it makes its way into law in a form essentially unchanged from that of the draft, we will not only have regulatory clarity in terms of eligibility for claims but also access to a method of assessing nutritional quality which could also potentially be used by food companies as a means of reviewing their existing product ranges with a view to improving the overall nutritional quality of their offerings to the public – and nobody can argue with that as a principle.

For those not familiar with the proposed scheme, details can be found on www.respond.za.net. Marketing and R&D people take note!

Claims assessment – uncertainty

However, the uncertainty of Phase 2 resides in the area of the procedures to be adopted for assessing the claims themselves once the product eligibility issue has been settled. Clearly we cannot have a free-for-all with cowboy marketers allowed to make at best unsubstantiated and at worst downright untruthful claims, but this needs to be tempered with the ability for companies with genuine claims to be able to make them.

It is a technically complex area encompassing a wide range of scientific and legal requirements and it is highly unlikely that South Africa has the resources to develop and sustain our own home-grown scheme for claim assessments. We should, therefore, not hesitate to steal with pride from other initiatives elsewhere in the world – the question is which one?

Perhaps the logical route would be to adopt the European scheme administered by EFSA as the model – it is well established and documented with a set of comprehensive guidelines for the submission of claims readily available on the EFSA website (http://www.efsa.europa.eu/en/efsajournal/pub/2170.htm). The sting in the tail comes from the very demanding parameters applied by EFSA for claim assessment and the reality that, in practice, over 80% of claims submitted are rejected on the grounds of insufficient substantiation.

The EFSA process is one almost guaranteed to make your average food industry R&D manager foam at the mouth in frustration (not to mention the bean counters who will have to sign off the massive scientific expenditure involved in the preparatory work, which is often comparable to that required for pharmaceuticals). However, the end product is that an EFSA-approved claim is one which is unquestionably acceptable scientifically and which can be made with total confidence that it is valid, ethical and commercially sustainable.

The process undoubtedly discriminates against small manufacturers who typically don’t have the resources to prepare the sort of substantiation required but, as those same small guys are often the ones guilty of significantly misleading the public in the past, maybe there is an element of poetic justice here, however brutal this may be. On another tack, it would also be nice to see an EFSA-type model applied to the spectacularly under-regulated supplements industry!

Will the EFSA model be the basis of the local model? We can only speculate but hopefully we will soon be able to see for ourselves what the Department of Health envisages.

We should also ask for and indeed demand a comprehensive consultative process for what is likely to be a difficult and controversial but necessary piece of regulation. The process followed for the nutrient-profiling exercise is a good start, but it is also important that the regulators consult both before and after formal comments have been received on whatever draft is produced.

This would avoid a number of the problems experienced with R146 where the authorities seemingly made very little attempt to consult directly with affected parties after the comments on the 2007 draft had been received and requests by bodies such as CGCSA, SAAFoST, ADSA and NSSA for expert input from task groups on particular issues were largely ignored.

There is a wealth of expert knowledge available in South Africa to assist with putting together regulations that are fair and technically sustainable and the Department of Health should make use of this expertise on the clear understanding that it ultimately has a responsibility to protect South African consumers and may have to take some tough decisions. However, providing these are made on the basis of scientifically sound criteria, the food industry should accept and work with them.

FST Feb 2013About Nigel Sunley

Nigel Sunley practices as a food science and technology consultant, trading as Sunley Consulting. He operates in a wide range of areas both locally and internationally, in particular product development, nutritional enhancement of foods, technical trouble-shooting and the management of food safety, nutrition and regulatory issues.

Nigel can be contacted at nigel@sunleyconsulting.co.za or at 082-4533125

Republished with kind permission of Tricia Fitchet, editor of SAAFoST’s quarterly FST magazine, from Volume 1, 2013. The journal is not online, and thus a fine reason to subscribe and/or become a member of SAAFoST. Contact , , , , , ,

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