Draft Regulations on Labelling and Advertising of Foodstuffs: Will the new warning labels be a put off?

Are you aware of the recent Draft Regulations relating to the labelling and advertising of foodstuffs (“Draft Regulations”) which were published for comment on 21 April 2023? If not, read on, as these proposed regulations could have a significant impact on industries and businesses that are concerned with, or involved in, the packaging of foodstuffs.

The Draft Regulations prohibit any person 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.

A notable development in the Draft Regulations, which contains many amendments and additions – which are not all discussed in this article but could have far reaching implications – is the introduction of mandatory warning labels known as ‘Front of Pack Labelling’ (FOPL). Pre-packaged foodstuffs which contain added saturated fat, added sugar, or added sodium above a certain threshold (the values thereof stipulated in the Draft Regulations) may be required to bear a mandatory black and white warning label on the front of the package.

According to the Draft Regulations, we can expect the mandatory warning labels to be depicted as follows:

Most notably, the mandatory warning labels may be applicable to all pre-packaged foodstuffs containing added artificial sweeteners –  in ANY amount whatsoever.

Furthermore, should a pre-packaged foodstuff be required to bear the FOPL, the Draft Regulations are extremely specific regarding where the FOPL is to be placed on the package. They stipulate that the FOPL logos are to be displayed on the front of pack/main panel of the container’s label and anchored to the top right-hand corner of the label. They also state that the FOPL 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 FOPL may vary according to the size of the front of the package and the number of symbols required to be displayed in the FOPL (i.e. High in Salt, High in Sugar). However, it appears that the FOPL may be required to cover as much as 25% of the front of the package!

If you are wondering what the effect of these mandatory warning labels would be, the reality is that should these Draft Regulations be promulgated in their current form, pre-packaged foodstuffs that are required to bear the mandatory warning label could end up looking something like this:

(*specifications of FOPL have not been calculated)

This may be of concern to those involved in, or related to, the food packaging industry in South Africa.  After all, the packaging of a product is engineered to entice consumers, positively, by grabbing their attention whilst also differentiating the product from competing products.  The draft regulations will certainly attract attention to products, for other glaring reasons.

It is not only the packaging of pre-packaged foodstuffs that will be affected by the introduction of these mandatory warning labels, but also the adverts too! In terms of the Draft Regulations, any advertising depicting products that carry the FOPL must include the relevant logos of the FOPL as well. These adverts are then required to bear a warning in capital letters, which is at least one-eighth of the total size or length of the advert, as follows:

In addition to this, the Draft Regulations prohibit the package, label or advert of foods carrying the FOPL, from depicting or containing reference to any celebrities, sport stars, cartoon-type characters, puppets, or computer animations. Imagine your favourite cereal or snack without the signature cartoon characters?!

What is important to consider is that the Draft Regulations are just that – a draft –  and are not yet operational. Accordingly, until such time that the Draft Regulations are promulgated, persons concerned with the labelling and advertising of foodstuffs should continue to be guided by the R146 regulations, which do not currently provide for such mandatory warning labels known as FOPL.

Nevertheless, manufacturers, importers, sellers, donators, or retailers of pre-packaged foodstuffs  are encouraged to consider whether their foodstuffs would be required to bear the mandatory warning labels, in terms of the Draft Regulations, so that they are not blindsided by the possible impact, should such Draft Regulations come into force in the near future.

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Regulator sanctions influencers over Lotto adverts – Comedians do not get the last laugh after failing to disclose that Twitter posts were paid advertising

The Advertising and Regulatory Board (ARB) recently handed down a decision holding that the videos posted by comedians Skhumba Hlophe and Celeste Ntuli had breached the code on South African advertising.

Hlophe and Ntuli uploaded videos on their Twitter accounts, promoting  South Africa’s national lottery, Ithuba Holdings RF (Pty) Ltd (Ithuba). The videos were part of an Ithuba campaign that sought to illustrate how the money it makes from ticket sales gets distributed. These videos trended on the number one position on Twitter between 11 and 13 August 2022. Subsequent to this, a consumer filed an ARB complaint against Ithuba on the basis that, inter alia, Hlophe and Ntuli had not included the required hashtag to indicate that the videos were paid advertising.

In considering the complaint, the ARB noted that clause 3.1 of Appendix K of the ARB Code states that advertisers are required to “disclose if content is part of a Social Media Advertising campaign as opposed to purely Organic Social Media.” Further, clause 3.3 of Appendix K provides that paid social media advertising must be clearly identifiable as such. Clause 3.3 then proceeds to list the recognised social media identifiers which include “#AD”, “#Advertisement” and “#Sponsored”.

Hlophe and Ntuli had omitted these identifiers and the ARB therefore ruled that Ithuba had not provided consumers with the necessary indicators to identify that the videos were sponsored or paid-for content. It held that consumers were likely to be confused into believing that their videos were organic social media. These videos were found to be contrary to clause 3.3 of the ARB Code and as a result, they were sanctioned from being accepted for publication.

In further considering the complaint, the ARB referred to the video uploaded onto Twitter by a fellow comedian, Schalk Bezuidenhout, in relation to the same Ithuba campaign. Bezuidenhout had included the hashtag “#ad” and made reference to having made a “Lekker PSA” (public service announcement), in his caption. His video was held to be compliant with clause 3.

Although it had made its ruling, the ARB noted that its memorandum of incorporation (MOI) states that the company has no jurisdiction over any person or entity who is not a member and may not, in the absence of submission to its jurisdiction, require non-members to participate in its processes. Its MOI further states that it may still consider complaints filed against non-members for the guidance of its members, however, such decisions will not be binding on non-members.

Ithuba is not a member of the ARB. Further, Ithuba had not responded to the ARB complaint and had thus, not submitted to the ARB’s jurisdiction. As such, its ruling is not binding on Ithuba but is binding on ARB members and on broadcasters in terms of the Electronic Communications Act.

The question of whether or not an ARB decision may be enforced against a non-member is currently before the Constitutional Court for determination. Consumers and businesses are encouraged to familiarise themselves with the ARB’s Code and to ensure compliance as far as possible.