As the food industry navigates the ever-evolving landscape of regulations, the Draft Regulation on Labelling and Advertising of Foodstuffs has sparked a significant discussion among stakeholders, primarily, the prudence of the regulation now.
Industry agrees consumer protection and public health must always be top priorities, but notes that it is essential to approach the implementation of this regulation with pragmatism to strike a balance between compliance and practicality.
The proposed Draft Regulation seeks to improve transparency in the food industry, empower consumers with accurate information to enable them to make informed choices about what they consume, and mitigate health-related risks associated with misleading food labels and advertisements. Undoubtedly, these goals align with the industry's commitment to delivering safe and nutritious products to consumers.
However, there are concerns about the feasibility and potential unintended consequences of some provisions in the regulation, which according to industry, could inadvertently create barriers for business and limit consumer choice. We shed some light on some of these ‘unintended consequences.
Trademark impact
Trademarks and other intellectual property (IP) rights form the foundation of the international economic system, enabling free markets to thrive.
The packaging of products is strategically designed to help consumers differentiate between various brands and distinguish genuine products from counterfeits. Some of our members have registered trade classes globally and locally, incorporating descriptors like "original," "energy," "no sugar," and "free-from-sugar" in their brand names and labels for decades.
These qualifiers have gained widespread recognition and understanding among consumers worldwide. The proposed restrictions in the Draft Regulations fail to acknowledge the extensive use and familiarity of these descriptors by global consumers. Consequently, they could have severe implications for our members and infringe on their established IP rights, safeguarded by the Constitution.
This arbitrary depravation of trademarks could unduly jeopardise commercial viability for some members who may in the long run decide to move their operations to other countries and opt to import products into South Africa. This would have a detrimental impact on jobs as manufacturing would cease, and this will further exacerbate unemployment in an already ailing economy.
Consumer awareness and education
The absence of public awareness and consumer education programs is a notable concern. One of the ten principles of front-of-pack labelling (FOPL) to which South Africa is a signatory emphasises the importance of having a comprehensive and sustained consumer awareness and education programme alongside the FOPL system to enhance consumer comprehension and utilisation.
To tackle the lack of awareness, we believe it is essential for the government to allocate resources to public education campaigns that promote healthy eating and highlight the advantages of implementing these labelling and advertising regulations.
For the regulations to effectively achieve their goals, consumer education programmes should complement and support these campaigns, as advised by the Codex on Food Labelling. Unfortunately, the Draft Regulations fail to address these issues, indicating the need for further exploration and consideration in this area.
Advancing evidence-based regulations: Leveraging the National Total Dietary Intake Study and Transparent Government Socio-Economic Impact Assessment
Amidst the ongoing debates about the socio-economic and health impacts of the Draft Regulations, the scientific foundation behind these regulations has received little attention. The lack of national data on adult dietary intake in South Africa is a well-known issue, and this scientific evidence is essential not only for the development of the Draft Regulations but also for formulating robust, well informed, and sustainable future food policies.
The international consensus on policymaking emphasizes the significance of scientific evidence, enabling policymakers to understand the scope of the problem and identify effective potential solutions.
Furthermore, it is challenging to ascertain the scope of studies that inform these Draft Regulations, including the number of participants, their representation across socio-economic groups, literacy levels, dietary patterns, and income brackets.
Studies, like "South African consumers' perceptions of front-of-package warning labels on unhealthy foods and drinks" by Bopape et al. (2021), are limited by small sample sizes, such as 113 participants representing a population of over 60 million South Africans.
Therefore, it is crucial to consider the findings of the 2022 National Dietary Intake Survey and the SEIA, which we are told was done, before finalising and publishing these regulations, as it will provide a broader and more proportionally representative document for the South African population.
Removal of the proposed “artificial sweetener” triangular FOP labelling warning
The World Health Organization (WHO) Draft Global Oral Health Action Plan (2023 – 2030) and the United Nations General Assembly 2018 Draft Resolution to Agenda 119 both recognise the importance of product reformulation as a means to mitigate health issues related to sugar consumption.
They set a global target for reducing sugar intake, urging WHO Member States to adopt policies and regulations that limits sugars intake (Action 22). Collaboration with the private sector is encouraged to reformulate products and reduce sugar levels, thereby promoting the adoption of healthier alternatives by consumers.
However, we believe that extending these Draft Regulations to include artificial sweeteners is excessive and could have adverse effects on both brand owners and consumers.
Such an extension may hinder innovation, impede the development of healthier options, excessively restrict consumer choices, and create barriers to future investments in research and development. Instead, we advocate that a balanced approach that carefully considers the potential impact on stakeholders should be pursued to achieve the desired health outcomes without unintended consequences.
The proposed FOPL label format
As industry, we want to reiterate that we appreciate the DoH's proposed labels, understand why they are important and how they will benefit consumers, but we have concerns about certain aspects of the FOPL system for the following reasons:
We believe that the existing descriptors in the other FOPL seals, such as 'high in sugar,' 'high in salt,' 'high in saturated fat,' are sufficient and clear in communicating the necessary information consumers require to make informed choices. Therefore, we respectfully suggest that additional descriptors and graphics, especially those that create prejudicial perceptions, are excessive.
Warning labels should function as heuristic tools that enable consumers to make quick and informed choices. The inclusion of the exclamation mark and the warning sign introduces unnecessary hurdles and triggers unconscious bias in the cognitive process of consumers.
Commencement of the draft regulations
The commencement and transitional arrangements proposed in these regulations present a host of unreasonable and impractical challenges.
To illustrate, consider the case of Chile, where similar regulations were drafted in 2012 but only came into effect in 2016. During this period, stakeholders in Chile grappled with technical difficulties stemming from the implementation of the Front-of-Pack Labelling (FOPL) system.
Manufacturers had to make significant changes to food packaging and labelling, necessitating substantial investments of both time and resources. A precedent for delaying regulations exists in South Africa, such as the instance in 1993 with the introduction of R.2034. Several key reasons support the argument for delaying the implementation of these new regulations.
Firstly, there is a notable absence of a comprehensive public awareness programme and consumer education efforts to support the new regulations. Successful implementation of labelling regulations hinges on public understanding and awareness of the associated health risks.
Government investment in public education campaigns is crucial to disseminate information about the benefits of these regulations and to promote healthy eating habits.
Secondly, businesses in the South African Development Community (SADC) region, particularly those engaged in exports, will face the daunting task of managing two distinct labelling regimes. This will necessitate the development of systems for products intended for both local and international markets.
Complying with the new labelling regulations will demand substantial technical and logistical changes, including revising food packaging and labels, creating comprehensive nutritional databases for products, and establishing internal monitoring systems for compliance.
Lastly, several additional considerations underscore the impracticality of immediate implementation. These include the need to manage existing Stock in Trade, adapt packaging designs to accommodate FOPL requirements and branding updates, address trademark issues and label registries for marketing and advertising restrictions, and reconfigure manufacturing lines, often requiring significant additional investments to meet labelling requirements for both local and exported products.
Given these substantial challenges, a delay in the implementation of these regulations is not only reasonable but also necessary to ensure a smoother and more effective transition.
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