Impact of new food labelling and advertising regulations

The impact of new food labelling and advertising regulations proposed by the Department of Health will probably not be what government intended. The aim of the new regulations is laudable as it seems to be directed at tackling South Africa’s soaring rates of obesity and lifestyle diseases, but the draft regulations could also go too far and result in multi-national companies leaving South Africa.

On the other hand, civil society organisations are welcoming the draft regulations because they believe that it will empower consumers to make better food choices and put their health first.

Draft regulations to alter food labelling landscape

This will not be good news in a country that already buckles under the pressure of high food prices and unemployment. The JSE’s food producers index is already down by 16% due to rising production and distribution costs, exacerbated by load shedding.

The minister of health published the draft regulations relating to the Labelling and Advertising of Foodstuffs in terms of the Foodstuffs, Cosmetics and Disinfectants Act on 21 April 2023 and stakeholders have until 21 July to comment.

“The draft regulations have the potential to significantly alter the landscape of labelling, marketing and advertising of foodstuffs in South Africa, adversely affecting stakeholders should the regulations be approved in their current form,” said Weber Wentzel partners Yolandi Robbertse and Bernadette Versfeld.

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Key changes in food labelling

According to Robbertse and Versfeld, some of the key changes contemplated in the draft regulations include:

• Specific front-of-pack labelling for foodstuffs that contain added saturated fat, added sugar, added sodium (salt), exceed the nutrient cut-off values for total sugar, total sodium or total saturated fatty acids, or contain artificial sweeteners. The regulations also include logos that must be prominently visible to the consumer when the product is displayed. Care must also be taken to ensure that the logos are not removed or damaged.
• Restrictions about what may be displayed on the front-of-pack labelling and who these foodstuffs may be advertised to as well as no marketing to children. These labels are not allowed to show celebrities, sports stars, cartoon-type characters, puppets or computer animations. The labels can also not include competitions, tokens, gifts or collectable items appealing to children and also no children in mixed groups with young adults older than 18, although young adults are not defined.
• Advertisements for products with a front-of-pack label may not abuse positive family values, such as portraying any happy, caring, family scenarios.
• WARNING labels must appear in black and white.
• Detailed provisions relating to health claims, which refer to an effect on the human body, including an effect on, for example, a biochemical process or outcome, growth and development, mental performance and oral hygiene.

“The strategy of brand owners worldwide is to advertise and package products in a way that attracts consumers. This is often done through celebrity endorsements, images of sports stars, cartoon-type characters (many of which have become household names) puppets, computer animations and feel-good images of happy families.”

Robbertse and Versfeld say the implications of the regulations about the front-of-pack labelling are therefore significant for brand owners who will, if the regulations become effective in their current form, need to embark on a re-branding exercise.

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Many changes for brand owners

They warn that brand owners will have to revise their trademark portfolios, requiring new trademark applications to be filed, as well as amendments to existing trademarks. Copyright portfolios and artworks will have to be amended and media and digital advertisements revised and reinstated.

“The significant costs associated with all these additional measures come at a time when brand owners are already confronted with a challenging economy. The laudable intention of the draft appears to be to address South Africa’s soaring rates of obesity and lifestyle diseases such as diabetes by providing more information on food labels and restricting misleading advertising.

“Unfortunately, the draft regulations have gone too far and, in doing so, could result in multi-national companies exiting the South African market altogether.

“Although the industry is naturally concerned about the impact of the proposed restrictions on their brands, trademarks and businesses, they fully support consumers being properly informed about the products they buy and recognise their role and responsibility in this regard.”

The bad news is that the consumer will pay in the end.

“Not only could international entities decide to leave the market, which South Africa can ill afford but the additional costs relating to compliance will inevitably (at least in part) be passed onto the consumer who is already wilting under the pressure of ever-rising costs,” Robbertse and Versfeld said.

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Very specific draft regulations

Rachael Lee, an associate in the Trademark Litigation department at law firm Adams & Adams, agrees that the draft regulations for food labelling could have a significant impact on industries and businesses involved in the packaging of foodstuffs.

“The draft regulations prohibit anyone from manufacturing, importing, selling, donating, or offering for sale any pre-packaged foodstuff, unless the foodstuff container or the bulk stock, from which it is sold or taken, is labelled according to the regulations as outlined in the draft.”

Lee also finds the introduction of the mandatory warning labels for pre-packaged foodstuffs worrying. “Most notably, the mandatory warning labels may apply to all pre-packaged foodstuffs containing added artificial sweeteners in any amount.

“Furthermore, the draft regulations are extremely specific regarding where the label must be placed on the package. The regulations stipulate that the logos must be displayed on the front of the pack or main panel of the container’s label and anchored to the top right-hand corner. The logos must be prominently visible to a consumer when the product is displayed and may not be obscured, removed, or damaged.”

The size of the warning may vary according to the size of the front of the package and the number of symbols required to be displayed. “However, it appears that the logo may be required to cover as much as 25% of the front of the package!”

Lee says the introduction of these warning labels will not only affect the packaging of pre-packaged foodstuffs but advertising too. “In terms of the draft regulations, any advertising depicting products that carry the warning panel must include the relevant logos as well.”

These adverts must then bear a warning in capital letters, which is at least one-eighth of the total size or length of the advert, that states “WARNING This product is high in [insert key nutrients] / contains artificial sweeteners. Excessive consumption may be detrimental to your health.”

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Consumers can welcome food labelling draft regulations

However, civil society organisation Healthy Living Alliance (Heala), says the draft regulations are in line with World Health Organization (WHO) recommendations for a healthy diet, which include limiting saturated fat consumption, limiting daily salt intake and limiting intake of free or added sugars.

“Overconsumption of saturated fats, salt and sugar can lead to people being overweight or obese and can cause a range of diet-related noncommunicable diseases, such as heart disease, stroke, diabetes and some cancers,” Nzama Mbalati, programmes manager at Heala, says.

Heala has welcomed the proposed changes to food labelling and is committed to mobilise communities to ensure policymakers take their concerns about unhealthy food consumption and the need for warning labels to help them make more informed food decisions, seriously.

“We believe that food regulation is at the centre of encouraging and empowering consumers to make healthier food choices in line with the WHO’s recommendation for better regulation of the food environment.

“Front-of-package warning labels, in the shape of a black triangle, allow consumers to see the ingredients of a product at a glance, helping them to increase their knowledge and change attitudes towards nutrition and health and help to reduce levels of diet-related disease.”

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Current information on food labels

Current information on food packages can be misleading and challenging for consumers to read and understand and Heala believes that the regulations aim to make far-reaching changes to the way food items are labelled on store shelves in South Africa.

This includes putting a stop to calling food products “smart” or “intelligent” on food labels and prohibiting the use of descriptors like “wholesome”, “nutritious”, “nutraceutical” or “super-food” on food labels. Words, labels and images that in any way suggest that the food is better, or superior, are also prohibited under the new rules.

Heala also has no problem with the warning labels.

“Processed foods contain high amounts of added sugar, salt, unhealthy fats and chemical additives, all of which can negatively affect children’s health. These foods not only increase the risk of obesity and health problems, but also displace nutrient-dense whole foods in children’s diets, leading to deficiencies in vital micronutrients.

“The regulations will help consumers to be better informed about what they are feeding their families and will help them to limit processed foods and prioritise whole, fresh foods for their children’s health and well-being,” says Mbalati.

A 2018 study in the Western Cape found that 80% of foods in South African supermarkets were ultra-processed. “More than 13% of South African children aged 6 to 14 years are overweight which is higher than the 10% global figure.

“This is particularly troubling because extra kilos often start children on the path to health problems that were once considered adult problems, including diabetes, high blood pressure and high cholesterol. Childhood obesity can also lead to poor self-esteem and depression.”

Mbalati says Heala believes that food regulation is at the centre of encouraging and empowering consumers to make healthier food choices in line with the WHO’s recommendation for better regulation of the food environment.

“We hope that government will do the right thing and not capitulate to industry demands, as this will ensure that all people who live in South Africa can make informed choices. We urgently need to ensure nutritious food is accessible and available to all.”