South African Legislation and the Food Industry Part II

There are many food industry laws and regulations in South Africa and many business owners struggle to keep up. The trick is to know the main ones and thereafter choose the ones that are relevant to your product and operations.  The fact that the industry is highly regulated and that many different national government departments are responsible for enforcing the laws stipulated by these different acts and regulations worsens the situation. In this blog, we have outlined the different acts, regulations and standards you would need to comply with to operate a legal food business.

1. Consumer Protection Act (No. 68 of 2008)

This act is controlled mainly by the Department of Trade and Industry. The act describes the right of all South Africans to safe and good quality products. It provides consumers with protection from harmful products, the right to return these products, issue complaints concerning them, and the right to compensation for any products which are of poor quality or cause them harm.  You would need to be familiar with the legislation which protects your consumers. It will be of your benefit to use it as a guide for what is expected of you as someone who supplies a service or product to the public.

2. Business Act (No. 71 of 1991)

If you have a business premises, you need a business license to operate. Every food handling business, from farm to retail, needs a license and you can apply for one through your local municipality or authority. While food packhouse businesses might not need a Certificate of Acceptability as per the regulation R638 of 2018, they will always require a business license.

3. Agricultural Products Standards Act (No 119 of 1990)

This act is controlled by the Department of rural development and land reform (DALRRD) and focuses on products that come directly from the agricultural industry. It contains regulations and standards which describe the conditions and practices needed to produce quality products and describes the process for procuring a FBO code. If your food business works with primary production or starts right at the farming point of the food supply chain, you will definitely find several regulations relating to your specific product under this act. To operate legally, you will need to apply for a FBO code through your local authority.

4. Foodstuffs, Cosmetics and Disinfectants Act (No. 54 of 1972)

This act falls under the control of the Department Of Health (DOH) and has multiple regulations concerning the handling of food, but the two below are the main ones which every food business which handles processed food should follow:

• R638: 2018, Regulations governing general hygiene requirements for food premises, the transport of food and related matters

Remember that Listeriosis outbreak we mentioned? This regulation was released in 2018 because of that incident. It describes in detail the hygienic practices and requirements you need to follow to prevent such incidents from happening. Examples of these include specifications for food business premises, duties of people in charge and food handling employees, pest and waste control measures, as well as specific requirements for dairy and meat processing industries.
It also describes the primary certification which a food handling facility that uses or sells processed food must have to operate: A Certificate of Acceptability (CoA). It doesn’t matter if you operate a massive wholesale industry or a tiny stall on the side of the road, all processed food handling businesses must have a CoA if they intent to make a profit from selling food products. To get a CoA from your local authority, you need to (at minimum) meet all the requirements set out in R638 before applying.

• R146: 2012, Regulations relating to the labelling and advertising of foodstuffs

Do you need to label your products even if you don’t sell them with packaging? The short answer is yes, the long answer is R146.
Even if you are selling a ready-to-eat product with minimal packaging, there are still some regulations you’re going to have to follow when it comes to advertising your product. What if your slice of cake has dairy in it and someone with a dairy allergy eats it? If you didn’t provide any warning labels or notices, you could find yourself in some serious legal trouble. This regulation tells you exactly what needs to go onto a label when you sell your product and what to include when advertising goods to the consumer. It also supplies a useful guide on how to layout and manage the information on your labels.

5. Occupational Health and Safety Act (No. 85 of 1993)

It’s not just about the food. If you own or work for a food handling business which has employees, there are specific regulations in place which protect them and their rights within the workplace. This act, which also falls under the DOH’s control, outlines the basic requirements that need to be followed in order to preserve the health and safety of everyone who works or interacts with your business and can be applied to all sections of food handling businesses, from farming to retail. It is highly recommended that you at least familiarize yourself with this act even if your food business is small.

6. Standards Act (No. 8 of 2008)

This act promotes the use of South African National Standards (SANS) in all industries, with the goal of having a uniform set of practices to produce quality goods and services. It is controlled by the DTI and places the SABS as the primary authority when it comes to these standardizations. While this act doesn’t seem all that important to a food handling business at first, it provides access to both legally required and recommended standards created by the SABS. Some of these will be compulsory to your food handling business, so you need to know which standards apply to you. Many of the SANSs are based on regulations from other acts (such as Act 54) or are taken from standards created by international authorities like the Codex Alimentarius or the International Organization for Standardization (ISO). They cover a range of requirements and guides on quality and safety practices for businesses.

Below are some examples of ones you are more likely to use:

• SANS 241: 2015 – water quality standards (compulsory for all food industries)
• SANS 10049 – food safety management requirements for prerequisite programmes (PRPs) (recommended unless your business is listed under regulation R908 of 2003 and subsequent amendments e.g. R607 of 2018 and you have elected to implement SANS10330 based FSMS)
• SANS 10330 – Requirements for a HACCP system (recommended unless your business is listed under regulation R908 of 2003 and subsequent amendments e.g. R607 of 2018 and you have elected to implement SANS10330 based FSMS )

As mentioned above, SANS 10049 and SANS 10330 are recommended but if you industry is listed under regulation R908 and subsequent amendments, and you have implemented a SANS 10330 based FSMS, then these two standards become compulsory to implement.

7. Other Regulations to Keep in Mind

Besides those we have just mentioned, there are almost definitely going to be other regulations you need to read up on, specifically under Act 54 and 119, to figure out what legal requirements your business must follow. A useful way to find these is to ask the following:

1. What type of product are you selling?
2. What types of additives or preservatives do you use?
3. What is the minimum/maximum limit of byproducts allowed in your product?
4. What kind of consumers are vulnerable to your product?

Some suggestions of these can be found here: https://ascconsultants.co.za/resources/food-safety-and-quality-legislation-in-south-africa

Are These the Only Requirements You Need to Follow?

Almost always, the answer to this is no.  Following these legislative requirements will ensure that you cover all legal requirements to run your business, but you also need to consider the customer requirements that will come up.

What is a Customer?

A customer doesn’t always refer to your average person on the street, it can also refer to any person or company which you plan to sell your product to, such as a retailer or other food processing business. These businesses might require you to follow other standards and practices for them to trust the quality of your product.

What Are These Additional Requirements?

1. A Food Safety Management System (FSMS)

It is always a good idea to create and document a set of good housekeeping practices for your company to follow. These should take inspiration from the legal and recommended standards you use (such as R638 and SANS 10049) to set up good hygiene and safety practices in your workplace. Not only will this protect the quality and safety of your product, but it will also assure your customers of this quality and make them more willing to buy your product.
The term for these practices is often described as Prerequisite Programmes (PRPs) or Good Manufacturing Practices (GMPs) and they are often made to cater to your business’s specific needs as well as the legal and customer requirements.

2. Hazard Analysis and Critical Control Point System (HACCP)

Sometimes, in addition to your own PRP/GMPs, customers will ask you to have a HACCP system as part of your FSMS. This is a risk assessment program which you use alongside your good housekeeping practices to find potential sources of contamination and have measures in place to prevent them.
South Africa does not legally require HACCP systems (yet), but many international standards require them. For example, in the UK, it is a legal requirement for all meat processing plants to have HACCP systems in place. You can read up on this at https://www.legislation.gov.uk/eur/2004/852/article/5 if you like.
If you plan to sell your product internationally, it would be a good idea to consider having one of these in place.

3. International Standards

A customer could require you to follow international standards for your FSMS before they are willing to buy your product. These are food safety systems that are globally recognized by the Global Food Safety Initiative (GFSI). Some examples of these systems are:

• FSSC 22000
• Global GAP
• BRC
• IFS

Having an internationally recognized system in place can be very useful if you want to eventually sell your products to international consumers. Additionally, you can’t go wrong in using them to implement your FSMS.  Be aware however that just because you follow an international standard does not mean you can forget about national standards. There will be specific standards within the country that are different to these, and you need to make sure that South African standards come first, or the standards of whichever country your product is being sold in.

Let’s Look at a Practical Example

Now that we know what types of legislation could apply to a food handling business, let’s take a look at two examples for how to identify the legislation you’d need to follow to start up a food handling business.

Example 1: You want to start a dairy production company in South Africa.  This includes the farming, processing and selling of milk along the food supply chain. These would be the legislations you must follow:

• Fertiliser, Farm Feeds, Agricultural Remedies and Stock Remedies Act (No. 36 of 1947)
• Animals Protection Act (No. 71 of 1962)
• Animal Disease Act (No. 35 of 1984)
• Agricultural Products Standards Act (No. 119 of 1990)
  – R1510  Regulations relating to the classification, packing and marking of dairy products and imitation dairy products intended for sale in the Republic of South Africa
• Foodstuffs, Cosmetics and Disinfectants Act (No. 54 of 1972)
  – R1555, Regulations relating to milk and dairy products as amended
  – R961, Regulations relating to hygiene requirements for milking sheds, the transport of milk and relating matters
  – R146, Regulations relating to the labelling and advertising of foodstuffs
  – R638, Regulations governing general hygiene requirements for food premises, the transport of food and related matters
• Business Act (No. 71 of 1991)
• Occupational Health and Safety Act (No. 85 of 1993)
• The Consumer Protection Act (No. 68 of 2008)
• Standards Act (No. 8 of 2008)
  – SANS 458, Tolerances permitted for the accuracy of measurements of products (including pre-packaged products) in terms of legal metrology legislation
  – SANS 241–1, Microbiological, physical, aesthetic and chemical determinants
• – SANS 1841, Control of the quantity of contents in prepacked packages within the prescriptions of legal metrology legislation
• – SANS 289, Labelling Requirements For Pre-packaged Products (Pre-packages) And General Requirements For The Sale Of Goods Subject To Legal Metrology Control

While these are some of the recommended standards you should follow:

• SANS 10330 Requirements for a Hazard Analysis and Critical Control Point (HACCP) system
• SANS 898 Good manufacturing practice for the self-mixing of feed in the livestock industry
• SANS 314 Milk and milk products – Guidance on sampling
• SANS 10049 Food safety management requirements for prerequisite programmes (PRPs)
• SANS 1679 Pasteurised milk
• SANS 1678 Sterilised milk

If you plan on branching out into an international market, you could also consider using one of the international FSMS programs suggested previously and you will need to look at legislation concerning exporting products overseas.

Example 2: You bought a chicory farm and want to go into the chicory production industry.

The legislations you must follow are:

• Fertiliser, Farm Feeds, Agricultural Remedies and Stock Remedies Act (No. 36 of 1947)
• Foodstuffs, Cosmetics and Disinfectants Act (No. 54 of 1972)
  – R146: 2010, Regulations relating to the labelling and advertising of foodstuffs
  – R246: 1994, Regulations governing the maximum limits for pesticide residues that may be present in foodstuffs
  – R638: 2018, Regulations governing general hygiene requirements for food premises, the transport of food and related matters
  – R588: 2018, Regulations relating to maximum levels of metals in foodstuffs
• Agricultural Products Standards Act (No. 119 of 1990)
  – R1154: 2020, Regulations relating to coffee, chicory and related products intended for sale in the Republic of South Africa
• Occupational Health and Safety Act (No. 85 of 1993)
• Business Act (No. 71 of 1991)
• The Consumer Protection Act (No. 68 of 2008)
• Standards Act (No. 8 of 2008)
  – SANS 241–1, Microbiological, physical, aesthetic and chemical determinants
  And again, these are some of the recommended standards you should follow:
•  Standards Act (No. 8 of 2008)
  – SANS 10330 Requirements for a Hazard Analysis and Critical Control Point (HACCP) system
  – SANS 10049 Food safety management requirements for prerequisite programmes (PRPs)

Conclusions

Now that you understand the basics, you are well on your way to ensuring that you understand what legislation is important to you in managing a food handling business.

The most important legislations that will apply to your business:

• The Consumer Protection Act No. 68 of 2008
• The Business Act No. 701 of 1991
• Agricultural Products Standards Act No. 119 of 1990
• Foodstuffs, Cosmetics and Disinfectants Act No. 54 of 1972
• Occupational Health and Safety Act No. 85 of 1993
• Standards Act No. 8 of 2008
• The Basic Conditions of Employment Act 75 of 1997