Draft labelling and advertising of foodstuffs regulations

The recent Regulations Relating to the Labelling and Advertising of Foodstuffs, 2023 (“R3337”), published for comment in April 2023, could have a significant impact on industries and businesses that are concerned with, or involved in, the packaging and advertising of foodstuffs in South Africa.

A notable development in R3337, which contains many amendments and additions – not all discussed herein but which could have far reaching implications – is the introduction of mandatory warning labels known as ‘Front of Pack Labelling’ (FOPL). Pre-packaged foodstuffs that contain added saturated fat, added sugar, or added sodium and which exceed a certain threshold for total sugar, sodium or saturated fat (the values thereof stipulated in R3337), may be required to bear a mandatory black and white warning label (FOPL) on the front of the package.

According to R3337, the mandatory FOPL is expected to be depicted as follows:

Most notably, the mandatory FOPL may be applicable to pre-packaged foodstuffs containing artificial sweeteners- in any amount whatsoever.

Should a pre-packaged foodstuff be required to bear any FOPL logo, R3337 is extremely specific regarding the positioning of the FOPL logos on the package. It is stipulated that the FOPL logos are to be displayed on the front of pack/main panel of the package, anchored to the top right-hand corner. In addition, the FOPL logos would be required to be prominently visible to a consumer when the product is displayed and may not be obscured, removed or damaged in any way.

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!

Naturally, this may be of grave 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 attracting their attention whilst also differentiating the product from competing products. R3337 could certainly attract attention to products, for less than ideal reasons.

Furthermore, it is not only the packaging of pre-packaged foodstuffs that would be affected by the introduction of these mandatory warning labels, but the advertisements for these products too. In terms of R3337, advertisements depicting products that carry the FOPL would be compelled to include the relevant logos of the FOPL. These advertisements would also be required to bear a warning in capital letters, depicted below, which would constitute at least one-eighth of the total size or length of the advertisement:

Moreover, R3337 prohibits the package, label or advertisements of foods carrying the FOPL from depicting or containing reference to any celebrities, sport stars, cartoon-type characters, puppets or computer animations. One can only imagine what the knock-on effect of not having a signature cartoon character or a famous celebrity displayed on a package could be.

However, the R3337 draft regulations are just that – a draft – and are not yet operational. Accordingly, until such time that R3337 is promulgated, persons concerned with the labelling and advertising of foodstuffs should continue to be guided by the current Regulations (“R146”), which do not provide for such mandatory warning labels.

Rachael Lee

Rachael Lee is an Associate in the Trade Mark Litigation department at Adams & Adams. Rachael served her articles of clerkship at Adams & Adams after attaining her BA Law degree and LLB degree (Cum Laude) at the University of Stellenbosch in 2018 and 2020, respectively. In 2023, Rachael was duly admitted as an attorney of the High Court of South Africa. As an associate in the Trade Mark Litigation Department, Rachael assists in an extensive range of litigious trade mark matters in South Africa as well as in countries throughout the African continent. Rachael mainly deals with trade mark litigation, domain name registrations and domain name disputes (including disputes before WIPO) as well as litigation relating to copyright, passing off, unlawful competition, company name objections and related issues.