Food Law Know-How: Part 9 - Trade Descriptions (GMO Food Products)

In previous articles we examined the material legislation that applies to labelling and advertising of foodstuffs, as well as the packaging of food products in South Africa. In particular we looked at certain provisions of the Foodstuffs, Cosmetics and Disinfectant Act, No 54 of 7972 (FCD Act) and the Consumer Protection Act, No 68 of 2008 (CPA).

In this article we will consider the provisions of the CPA dealing with trade descriptions as they apply to foodstuffs, read with CPA Regulation GNR.293 of 1 April 2011, Government Gazette No 34780 (GMO Regulation 293), which came into effect in October 2011 and makes provision for the labelling of foodstuffs containing genetically modified organisms (GM05). In addition, on 9 October 2012 draft amendment regulations were promulgated to amend GMO Regulation 293 (draft regulation).

CPA and trade descriptions: a recap
The CPA was signed into law on 24 April 2009, with the greater part of it commencing on 31 March 2011. The CPA sets out certain minimum requirements to ensure adequate consumer protection in South Africa. This piece of legislation has attracted the attention of many suppliers and consumers, and has managed to draw both positive and negative commentary.

The most recent debates are based on the provisions dealing with food labelling and trade descriptions, particularly in the GMO context:

  • The CPA defines a "trade description" as "any description, statement or direct or indirect indication, other than a trade mark as to the number, quality, measure, weight or gauge of any goods; the name of the producer or producers of any goods; the ingredients of which any goods consist, or material of which any goods are made; the place or country of origin of any goods; the mode of manufacturing or producing any goods; or any goods being the subject of any patent, privilege or copyright; or any figure, work or mark, other than a trade mark, that according to custom of trade, is commonly understood to be an indication of any matter contemplated herein".
  • Section 22 requires that information that is intended for the consumer must be in plain and understandable language.
  • A trade description is said to be in plain and understandable language if it is reasonable to conclude that an ordinary consumer of the class of persons for whom the trade description is intended, and who possesses average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance and importance of the trade description without much effort.
  • Section 24 prohibits misleading trade descriptions. It is therefore very important for the supplier to exercise caution and vigilance with respect to such trade descriptions, and ensure the accuracy of such trade description (as far as reasonably possible).
  • Of particular importance is section 24(6). It obliges any person who produces, supplies, imports or packages any prescribed goods to display on, or in association with the packaging of these goods, a notice in the prescribed manner and form that discloses the presence of any genetically modified ingredients or components of these goods in accordance with applicable regulations.

GMO Regulation 293
GMO Regulation 293 gives content to section 24(6) and introduced requirements regarding the content of trade descriptions and labelling of foodstuff containing GM0s, and applies to goods approved for commercialisation by the Executive Council for Genetically Modified Organisms. In addition, it does not amend, repeal or detract from any other regulations applying to the labelling of GMOs made under other legislation, nor does any other such regulation detract from GMO Regulation 293.

A GMO is given the same meaning as prescribed in the Genetically Modified Organisms Act, No 75 of 7997 and is defined as "an organism, the genes or genetic material of which has been modified in a way that does not occur naturally through mating or natural recombination or both, and 'genetic modification' shall have a corresponding meaning".

For the purposes of section 24(6), GMO Regulation 293 is applicable to goods, and the marketing of such goods that contain at least 5% of GM0s, irrespective of whether the making or manufacturing of the goods occurred within South Africa or elsewhere. Any goods, ingredients or components subject to GMO Regulation 293 may not be produced, supplied, imported or packaged unless a notice meeting the requirements of Section 22 is applied to the goods or marketing materials in a conspicuous and easily legible manner and size, which states that it "contains genetically modified organisms".

If the goods are intentionally and directly produced using GMO processes, the goods or marketing material must be labelled in accordance with Section 22, without change, and must additionally be consumer savvy labelled as "Produced using genetic modification".

Unless a good, ingredient or component contains less than 1% GMO, a notice in terms of Section 22 may not state that it does not contain any GMO. However, such a notice may state that the level of GMO in the good, ingredient or component is less than 5%.

If it is not feasible or if it is scientifically impractical to test goods for the presence of GMO ingredients, a notice meeting the requirements of section 22 must be applied to the goods or marketing material in a conspicuous and easily legible manner and size stating that the goods "May contain genetically modified ingredients".

GMO draft regulation
The draft regulation gazetted in October 2012 sets out intended amendments to GMO Regulation 293 and invited comments to the intended amendments.

Briefly, the draft regulation amends GMO Regulation 293 to state that it applies to "all" goods that contain GMO ingredients or components. In addition, references to "genetically modified organisms" have been replaced to refer to "genetically modified ingredients or components" and references to "good or ingredient or component" have been replaced to refer to "good".

Of interest in respect of the marketing of GMO goods, references to notices meeting the requirements of section 22 "applied to such good or marketing material, as the case may be" are replaced with the reference to such notices which are "displayed on, or in association with the packaging of these goods".

The Draft Regulation also extends the application of GMO Regulation 293 to "goods derived from" GMO. The Draft Regulation appears to widen the scope of application of GMO Regulation 293 by clarifying that it applies to "all" goods containing GMO ingredients or components. This clarification has stemmed from arguments that the regulation did not apply to processed food.

The period for commentary on the draft regulation has now closed and the industry awaits the next step in the amendment process.

With a strict approach to consumer protection being upheld, it has become extremely important for suppliers to know and understand consumer law. For a supplier, it is important to ensure that the goods supplied have clear and understandable trade descriptions in compliance with all relevant CPA regulations. As stated above, failed compliance could attract heavy sanctions for the supplier.

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