What to Expect in the New Labelling and Advertising Regulations R3337 for Food Stuffs in South Africa

What are the Labelling and Advertising Regulations?

The Labelling and Advertising Regulation is a legal document that aims to ensure that South African consumers are appropriately informed of the food they consume and places the responsibility for providing information on food businesses. In addition, these regulations have been drafted to protect consumers from misinformation, misrepresentation, mislabelling and incomplete information. Most of what is contained in these regulations is what first-world countries have already implemented.

The labelling and advertising R146 was published by the Minister of Health on 1 March 2010 in terms of the Foodstuff, Cosmetics and Disinfectant Act 1972 (52 of 1972). The Regulation only came into effect on 1 March 2012 after granting a grace period of 2 years to the food industry to comply with the regulation requirements since the new requirements had logistical and operational impacts on the food industry.

Compliance with the requirements of these regulations is enforced by Environmental Health Practitioners (EHPs) employed by Municipal Health Services of Metro and District Municipalities.

Non-compliance leads to the EHP issuing the non-complying company with a notice of compliance, allowing them time to comply. Persistent non-compliance may lead to legal steps being taken and prosecution.

In 2014, the Department of Health proposed further significant amendments to the Regulation, published as Regulation R429 of 2014. The Regulation R429 of 2014 was never promulgated.

Early this year, the Department published several draft regulations for labelling, with the final draft being Labelling and Advertising of Foodstuff Regulation R3337, which, if finalised based on stakeholder feedback, will replace regulations R146 completely. The draft regulation has been open for public comments since 21 April 2023, and the opportunity to submit will be closed on Friday (21 July 2023).

DOWNLOAD A SUMMARY OF THE DIFFERENT VERSIONS OF LABELLING REGULATIONS HERE

Labelling and Advertising Regulations Timeline:

• Before 1993: Basic Regulations under the FCD Act
• 1993-2010: Regulation 2043 (Came into effect in 1995)
• 2010: R 146 (Most comprehensive covering gaps)
• 2014: Version 2 of R146, which is Regulation R429 (Covered more gaps but was never promulgate.

With the new Regulation in the pipeline, what can you, as the Food Handler (including consumers, manufacturers, packers, retailers, street vendors and NGOs) expect from this new Regulation when it comes into effect?

This Article will discuss some of the changes with the new draft regulation R3337. We will not discuss the contents of the current Labeling and Advertising regulations R146..

Overview of the Draft Regulations R3337

The current draft in question has a total of 249 pages compared to regulation R146 which has a total of 51 pages, and the then-proposed amendment R429, with has a total of 106 pages. The number of regulatory requirements will be significant with the latest update.

The draft regulation (R3337) also has a total of 78 sections. The current Regulation has 56 sections/ The new draft, therefore, has 22 more sections compared to the current Regulation R146.

There are, finally, many changes in terms of definitions.

A total of 47 definitions have been removed, and about 32 new terms have been proposed. We will look at two or three critical additions to note.

The draft regulation (R3337) is more reader-friendly by including tables under each section and referencing them accordingly under each section of the Regulation.

The draft regulation has four more new annexures.

• Annexure 6: Major dietary carbohydrates
• Annexure 7: Culinary Herbs and Spices for ordinary use in food preparations
• Annexure 8: South African Nutrient Profiling Model: Screening Criteria for Health and nutrition claims
• Annexure 9: Illustrative list of foods that need only a “date of manufacture” or a “date of packaging”, as appropriate
• Annexure 10: Front of Pack Nutrition Labelling (FOPL) logos

The draft regulation has stopped referring to the SANS. Instead, it has referenced the relevant Acts, also included in the definitions.

Important Key Changes

• Permitted and Prohibited Claims
• Prohibited trademarks and trade names.
• Marketing restrictions on unhealthy foods
• Front of the pack health warning
• Artificial Sweeteners and Sugar
• Interpretation Issues (Guidelines) still need to be published.

New Definitions on Draft R3337

We will not be discussing all new definitions in-depth, but we have picked up a few which are very important to note:

Best Quality Before Date: exact definition as Best Before Date with a new addition:
‘…However, beyond the date, the food may still be acceptable for consumption.’
The long-standing debate around the best-before date has been addressed in the new Regulation. The definition of best before has been changed to accommodate the fact that food might still be acceptable for consumption after the best before as much as food can spoil before the best before date.

New Definitions on Draft R3337
We will not be discussing all new definitions in-depth, but we have picked up a few which are very important to note:

1. Best Quality Before Date: exact definition as Best Before Date with a new addition: ‘…However, beyond the date, the food may still be acceptable for consumption.’ The long-standing debate around the best-before date has been addressed in the new Regulation. The definition of best before has been changed to accommodate the fact that food might still be acceptable for consumption after the best before as much as food can spoil before the best before date.
2. The additive definition has excluded processing aid, and regulation 36 has included additional requirements for processing aid not to be declared.
3. Children’s definition for Front Of Package Labeling (FOPL) marketing included all children 18 years and under.

Specific Changes Under Each Regulation

Below we will discuss some changes you will notice in the draft regulation. One of the noticeable changes that you will see throughout the Regulation is that ‘shall’ has been replaced with ‘must’ in the draft regulation. This has been done to reinforce the mandatory aspect of the requirements.
Let’s further discuss some of the changes you will see in the specific section of the draft regulation:

Regulation 2 – General

Sub-regulation 2 has been slightly updated in wording, but the requirement has remained unchanged.

Subregulation 3 has been made more explicit regarding who is responsible for the complaint of product labels with these requirements. The person whose business or business name is marketing the foodstuff for sale is responsible.

Sub-regulation 4 further outlines on the new draft (Subject to regulation 74 (3)) that any information required by the Regulation but not included on the product’s label must be provided immediately upon request. Meaning it must be kept in the store where the products are sold.

The rest of the requirements are similar to those in R146. However, the presentation of the requirements or the wording and order is different. The requirements, however, have stayed the same.

Regulation 3 – Presentation

The requirements under Regulation 3 have stayed the same. A few additions have been made:

3(1) Subject to regulation 4, the information that must appear on any label must be – in English, and where label space permits, a second official language of South Africa of the manufacturer’s choice: Provided that the minimum letter size used for the required label information may not be reduced to accommodate various languages for local or export purposes
.
NB: This is meant to clarify that the second optional language can be added on the label provided it does not affect the visibility of the primary labelling language, English.

Section 1(b) has another edition on the contract of the label stating that it should be indelible, clearly visible, and easily legible with a significant contrast between font colour and background colour, and the legibility thereof must not be affected by pictorial or any other matter, printed or otherwise.; Provided that –

(i) colours used on labels shall not dominate/ overwhelm nor be used in such a way that any information, warning statement or FOPL logos, when applicable, become poorly visible, non-legible or indistinguishable from pictorial representations and information; and

(ii) White lettering on any background colour except black shall be prohibited.

N.B The draft regulation has highlighted the need to refrain from using creativity that might hinder consumers from accessing important information about the product.

Regulation 6 – Country of Origin

There is a significant change under Regulation 6. The amendment regulation prohibited the use of national flags. The new draft regulation permits using national flags when referring to the country of origin.

2(a) Using a national flag is only permitted to indicate the country of origin when accompanied by the wording contemplated in sub-regulation (1).

2(b) In the case where the wording” Proudly South African” is used, the South African Flag may be used, provided the product complies with the criteria for “Products of (name of country).

Regulation 8- Date Mark

Numerous changes are made under this Regulation; we will only highlight a few important ones, like the sale of foodstuff that has passed their Best Before Quality Date is permitted, provided the integrity of the food has been maintained. This has two exceptions:

1. Enhanced food stuff sold to children
2. Imported Foodstuff.

The importance of including the date of manufacture has also been highlighted under the draft regulation.

• Best Before Quality Date has been added under section 2
• The expiration date has been included under section 6(a)

Regulation 9- Prohibited

Under regulation 9 (a), the following additions are noted All endorsed foodstuff ( By credible endorsing bodies) must comply with the following foodstuff, which is endorsed, successfully qualifies with the screening criteria of the Nutrient Profiling Model for South Africa as outlined in Annexure 8 using the electronic calculator which is available on the website of the Department and is not required to bear any Front-of-pack-logo (FOPL); and

There is also a change in the fibre content and sugar percentage in endorsed fruit or vegetable juice. Below is the new requirement:

In the case of fruit or vegetable juices being endorsed, the fruit or vegetable juice does not contain any added sugars or free sugars, qualifies for the non-addition claim for sugars and has an intrinsic dietary fibre content per 100 ml that equals at least 20% of the dietary fibre content of 100 g of the same fresh fruit or vegetable; provided the dietary fibre is the intrinsic natural fibre from fruit or vegetable pulp/purees/pastes and not added purified non-starch polysaccharides (NSP);

There have been new requirements included in terms of wine and alcohol. Subsection four covers all these requirements.

Regulation 24 – Bulk Stock

There is a significant additional requirement on the bulk stork under sub-regulation 3. It outlines requirements for foodstuffs that are packed in bulk, and there is additional packaging that covers labels. There is a significant addition in the labelling information that must be provided on the bulk packaging above the additional packaging:

(a) Name of the product; (b) name and address of the manufacturer; (c) special storage conditions; (d) allergen information; (e) batch code; (f) an appropriate date marking.

There is also an additional requirement for bulk storage of cheese and deli-type processed meat loaves; they must have a packaging date and repackaging date when sliced and reparked.

Regulation 25 – Small Packages

Regulation 25 states that the packaging of a pre-packaged foodstuff that has a total exterior area of 2000mm﮹² or less, including single once-off use 10g or less sized packages of culinary herbs and spices, sauces, and condiments and 25g or less sized confectionary products are exempted from the requirements of labelling.

The new draft regulation has one new addition, including the FOPL logo, where applicable.

Regulation 27 – Vending Machines

Vending Machines products have one crucial additional requirement on the visibility of the FOPL.
Pre-packaged foodstuffs which are required to bear a mandatory Front-of-pack label (FOPL) shall be packed in the vending machine in such a way that clearly displays the foodstuff with the main panel on which the FOPL logos are clearly visible from the outside of the machine.

This will ensure that the consumers see the warning labels before they purchase the product.

Regulation 29 – Prepacked Food Additive

The requirement now states that the labelling of prepacked food additives must comply with the requirements of the latest edition of the Codex general standard for labelling food additives.

The requirement states that pre-parked additives do not have to include a nutritional table.

Regulation 30 – Flavourants

There is one additional requirement under this section for compound flavourant labelling:

4) Subject to regulation 20, mixtures containing one or more flavourings, other ingredients such as salt, sugar, herbs, spices or other categories of food additives intended for use in or on snack foods or in other foodstuffs must be considered as being compound ingredients and must be labelled accordingly.

Regulation 31 – Artificial Sweeteners (Additives)

This is a new requirement in draft R3337, which outlines labelling requirements for foodstuffs with artificial sweeteners.

Regulation 32 – Modified Starches, Processing Aids and Carry-over of Additives

Additional requirements are as follows:

• Declaration of processing method of modified starches
• Requirement not to declare preparation utensils.
• Declaration of additives and preservatives used.

Regulation 37 – Allergens

This section on the draft regulation has grown significantly several additional requirements have been included.

• The requirement to declare sulphates when their amount is equal to or less than 10 ppm.
• A list of products derived from allergens is under subsection 2, exempted from the allergen labelling requirement.

Regulation 38 – Uncommon Allergens

There is an additional requirement for declaring products made of/or containing a part of Lupin. The following labelling is required: “Allergenicity: Peanut-allergic individuals are at high risk to react to lupin present in this product.”

Regulation 42 – Nutritional Information/Facts

There are numerous changes and additions that you will find under this section of the drafts regulation:

The exemption for having a nutritional table does not only include the vendors or home industry on the draft regulation but also includes products listed under table one. The exemption only applies if no health claim is made on the product.

There are also more detailed requirements on the values and structure of the nutritional table, including the credibility of the information provided.

Regulations 47 – Additional Requirements Relating to the Nutritional Information Table

There are several essential requirements under this section, mainly concerning laboratory tests; specifications of nutritional laboratory test methodologies.

Regulation 50 – Nutrient Profiling Made for Nutrient and Food Claim

Food businesses will need to consider several crucial additions under this Regulation. One of them is products that exceed requirements on key nutrients or have artificial sweeteners that must have FOPL (Front Of Pack Label) on the main panel to warn consumers.

Regulation 51 – Profiling Model For Foodstuffs For South Africa For The Purpose Of FOPL Logo On Labels Of Foodstuff That May Not Be Marketed Or Advertised To Children

Firstly, prepacked foodstuff must bear a Font of Park Label Logo if it contains saturated fat, sugar and sodium. Secondly, if it exceeds the nutrient cut-off limit of Total sugar, total sodium and total saturated fatty acids as per requirements under this section and finally, if it contains artificial sweeteners.

Requirements for FOPL are described under Annexure 10 of the draft regulation. The logo is required to cover about 25% of the front pack. More requirements prohibit the use of different tactics to encourage consumers to buy items with FOPL, which are listed under the requirements of the Regulation, like competitions, using celebrities and portraying happy families, and so much more.

Finally, products with FOPL must show the below warning label during advertisements.

WARNING: This product is high in [insert key nutrients] / contains artificial sweeteners. Excessive consumption may be detrimental to your health.

Completely New Additions

• Regulation 53: Use of South African Food-Based Dietary Guidelines
• Regulation 54: Claims on packaged water
• Regulation 55: Foodstuffs containing added purified, crystalline fructose (C6H12O6) or added non-nutritive sweeteners.
• Regulation 56: Fake foodstuffs
• Regulation 57: Cosmetic claims
• Regulation 58: Claims represented through pictures

The rest of the Regulation guides nutritional and health claims, respectively. The draft outlines specific requirements for prohibited and allowed claims depending on the product you are handling.

DOWNLOAD A SUMMARY OF THE DIFFERENT VERSIONS OF LABELLING REGULATIONS HERE