Food industry calls for pragmatic approach to label and advert rules

As the food industry navigates the ever-evolving landscape of regulations, the draft regulations on labelling and advertising of foodstuffs  have sparked a significant discussion among stakeholders, primarily in terms of the prudence of the regulations now.

The food industry agrees that consumer protection and public health must always be priorities, but notes that it is essential to approach the implementation of these regulations with pragmatism to strike a balance between compliance and practicality.

The proposed draft regulations aim 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 ads.

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 regulations which, according to industry, could inadvertently create barriers for business and limit consumer choice.

Here, the Beverage Association of SA (BevSA) sheds 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 BevSA members have registered trade classes globally and locally, incorporating descriptors such as “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 members and infringe on their established IP rights, safeguarded by the constitution.

This arbitrary deprivation 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 SA. This would have a detrimental effect on jobs as manufacturing would cease, and this will further worsen unemployment in an already ailing economy.

Consumer awareness and education

The absence of public awareness and consumer education programmes is a notable concern. One of the 10 principles of front-of-pack labelling (FOPL), to which SA 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, 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

Amid the debates about the socioeconomic and health effects of the draft regulations, the scientific foundation behind these regulations has received little attention. The lack of national data on adult dietary intake in SA 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 emphasises the significance of scientific evidence, enabling policymakers to understand the scope of the problem and identify effective solutions. Furthermore, it is challenging to ascertain the scope of studies that inform these draft regulations, including the number of participants, their representation across socioeconomic groups, literacy levels, dietary patterns and income brackets.

Studies, such as “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 more than 60-million South Africans. Therefore, it is crucial to consider the findings of the 2022 National Dietary Intake Survey and the socioeconomic impact assessment, which BevSA were told was done, before finalising and publishing these regulations. This will provide a broader and more proportionally representative document for the South African population.

Removal of the proposed artificial sweetener triangular FOPL warning

The World Health Organisation (WHO) Draft Global Oral Health Action Plan (2023-2030) and the UN 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 limit sugar 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, extending these draft regulations to include artificial sweeteners is excessive and could have adverse effects on 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 & development.

Instead, BevSA advocates 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 format

The industry appreciates the national department of health's proposed labels and understands why they are important and how they will benefit consumers. However, there are concerns about certain aspects of their FOPL system because the existing descriptors in 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, BevSA respectfully suggests 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 FOPL system. Manufacturers had to make significant changes to food packaging and labelling, necessitating substantial investments of time and resources.

A precedent for delaying regulations exists in SA, such as the instance in 1993 with the introduction of R.2034 food labelling regulations. Several key reasons support the argument for delaying the implementation of these new regulations.

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.

Businesses in the South African Development Community, 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 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.

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 investment to meet labelling requirements for 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.

This article was sponsored by the Beverage Association of SA.