FOOD REGULATION IN SOUTH AFRICA – PAST, PRESENT AND

FUTURENigel Sunley

Sunley Consulting

ONCE UPON A TIME….

There was anarchy in the marketplace!

• No regulation• Free for all in terms of products and information

conveyed to the unsuspecting public

AND THEN CAME…

• The Foods Drugs and Disinfectants Act in 1929

• Replaced by the Foodstuffs Cosmetics and Disinfectants Act 54 of 1972:

‘To control the sale, manufacture, importation and exportation of foodstuffs, cosmetics and disinfectants; and to provide for incidental matters’

FOODSTUFFS COSMETICS AND DISINFECTANTS ACT CONTAINS:

• Broad based definitions

• Prohibition on sale, manufacture or export of foodstuffs cosmetics & disinfectants that are non-compliant, contaminated or injurious to health

• Prohibition on false descriptions

• Liability clauses

• Inspection procedures & powers of inspectors & analysts

• Provision for regulations published under the Act

• Offences, related penalties and administrative procedures

Desirable to have some knowledge of the overall nature of FC&D as it is very broad based and has an ‘umbrella’ function

FC&D CONTAINS REGULATIONS RELATING TO:

•Food composition

•Food labelling & advertising

•Food safety

•Enforcement of all of the above

HOWEVER WE HAVE ANOTHER 2 GOVERNMENT DEPARTMENTS INVOLVED IN FOOD REGULATION

•Department of Agriculture Forestry & Fisheries (DAFF)• Specific additional compositional, labelling and inspection

requirements for certain agricultural commodities and categories of food

•Department of Trade & Industry• Consumer Protection Act• NRCS regulations• Trade Metrology• Other specific ‘funnies’!

FOOD LABELLING MATTERS ARE GOVERNED BY THE REGULATIONS FALLING UNDER FC&D

R908 of 1977

R2034 of 1993

R146 of 2010

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GLOBAL DRIVERS BEHIND REGULATORY CHANGES FOR FOOD LABELLING

Nutrition based drivers such as:• Less saturated fat, trans fatty acids, sugar, salt

• Decrease portion sizes

• More fruit and vegetables

• Effective food labelling

• Incentives for the production & marketing

of healthier products

• Review current marketing practices

WHO Global Strategy on

Diet, Physical Activity and

Health 2004

MORE COMMERCIALLY AND CONSUMER BASED DRIVERS

• Importance of providing accurate and balanced information for consumers in order to enable them to easily make healthy choices

• Past abuse of descriptive terms such as ‘healthy’ & ‘natural’

• Greater transparency regarding ‘invisible’ manufacturing practices e.g. injection of meats

• Greater transparency regarding food composition

• Consumer awareness of allergens

• Compulsory date coding

• Global standardisation of label content

WHAT ARE THE BENEFITS OF REGULATORY STANDARDISATION?

• Ease of application

•Minimising Technical Barriers to Trade (TBT) and reducing risk of conflict with other WTO provisions

•Alignment with Codex

WHAT ARE THE DOWNSIDES OF REGULATORY STANDARDISATION?• Types of products and related information may be unique to

particular countries or groups of countries and require special provisions

• Potential conflicts with existing broader-based legislative requirements

• Language issues

• Consumers may be accustomed to receiving information in a particular format and changes may cause confusion or even contravene local laws regarding provision of information to consumers

THE ROLE OF CODEX

• Official role is:

‘…to develop harmonised international food standards, which protect consumer health

and promote fair practices in food trade’

• Codex is a vast bureaucracy based at FAO in Rome, Italy with a thankless task!

• Works through a system of different committees dealing with different aspects of food regulation e.g. contaminants, food additives, food safety & hygiene, labelling, nutrition, analysis.

• Also has specialist groups dealing with particular food categories e.g. cereals, fruit & vegetables, fats & oils, dairy products

• Also has regional groupings including one for Africa

• Also manages bodies such as Joint Expert Committee on Food Additives (JECFA) that conducts safety assessments on food ingredients

THE PROS AND CONS OF CODEX

PROS

• Strongly established body (1963) with solid systems

• Genuinely global in nature (145 member countries)

• Comprehensive documentation of Codex Standards

• Excellent user-friendly website

CONS

• Process of alignment is very long drawn out – 8 ‘steps’

• Sometimes impossible to achieve agreement (e.g. GMO labelling) and development of a standard is not possible

• Codex Standards have no legal status in individual countries although some countries use them as de facto legislation

WHAT IS SOUTH AFRICA’S POSITION ON CODEX?

• Stated intention is to align as far as possible with Codex requirements

• However there are numerous instances of local regulations not aligned with Codex

• In some (but not all!) instances, stated DoH intention is to move towards Codex alignment

• But - in the absence of local regulations on a particular topic, the relevant Codex standard will carry significant weight

THE REGULATORY TIME-LAG PHENOMENON

• Routine legislation in most areas is only updated infrequently due to limited resources and the desire by government to avoid continuous changes that make it difficult to• Implement by those on the receiving end due to continuously

moving goalposts

• Enforce by the regulatory authorities

• It stands to reason that any new piece of legislation will be • More in line with global trends when it is first implemented and

thus more up-to-date than legislation in other countries

• Become progressively outdated and ultimately requiring change as other countries catch up and implement further updates

THE WORLD OF FOOD CHANGED POST-1993

• Greater consumer awareness of nutrition

• Rise of the ‘Greens’ and other activists

• Increases in diet related NCD’s

• Increases in obesity

• Rise of the internet!

And, in South Africa:• New political dispensation and increased

westernisation of diets among the majority

REVAMPING R2034 WAS A LOOONG PROCESS!

• Work appears to have started around 1999

• 1st draft was published in 2002 and there was considerable consultation and working groups – expectations were high!

• Then we waited…and waited…and waited

• 2nd draft R642 was finally published in July 2007 and were highly controversial and much criticised e.g. concept of ‘non-essential foods’

• After much lobbying, DoH decided to split the new regulations into 2 sections:

• Phase 1 – simpler & less contentious components to be fast-tracked

• Phase 2 – more complex components, particularly those relating to claims to be reviewed in more detail for later publication

• Then we waited again!

DURING THE NEXT LONG WAIT, THERE WERE MORE DEVELOPMENTS…

• Medicines Control Act attempted to take over responsibility for functional foods• Completely impractical and technically clueless intervention

• Seemingly no communication between Food Control & Medicines Control Council

• Proposal was quietly dropped

• Consumer Protection Act was published in 2009• Placed an ‘umbrella’ over all legislation relating to any goods and services

supplied to the public

• Specific prohibitions on misleading information, which would be applicable to food as a blanket clause

• Penalties much more severe than those under FC&D

• AND…GMO regulations and subsequently meat identity regulations were completely illogically introduced under CPA / DTI auspices for political reasons

AND EVENTUALLY IN 2010 WE GOT TO R146

Key components of R146 relative to its predecessors were:• More comprehensive definitions

• Compulsory date coding

• Control of endorsements

• Declaration of added water

• Storage instructions in LARGE letters

• Update of nutritional information format and methods of obtaining same

• Heavy restrictions on claims – limited to strictly controlled nutrient content and comparative claims

BUT BY THE TIME R146 WAS PUBLISHED IT WAS ALREADY IN NEED OF UPDATING!

• Needed to incorporate those components put on the backburner prior to 2010 in order to get R146 into operation

• Big gap in the claims area

• Further global alignment required

• Various ‘funnies’ that were only partly remedied by formal amendments to R146

THERE WERE FURTHER EXTERNAL FACTORS INFLUENCING THE REGULATORS

• WHO Global Strategy on Prevention and Control of Non-communicable Diseases published 2008

• Ever increasing incidence of obesity

• Opposition to advertising of ‘unhealthy’ food to children

• Public health activists increasingly demanding greater regulation as a feel-good ‘magic bullet’

• Increased targeting of sugar and salt

THE RESULT – R429• Published for comment 29th May 2014

• Intended to replace R146, hence contains slightly amended existing regulations plus major new sections relating to:

• Regulation of claims

• Further constraints on certain existing claims

• Provision for validation of new claims

• Radical proposals to limit advertising to children

AND NOW – WE WAIT AGAIN!• Approximately 150 submissions received by DoH on R429

draft

• Little or no feedback from DoH regarding progress with converting the draft into formal legislation

• No attempt by DoH to consult with independent objective scientific bodies such as SAAFoST, ADSA and NSSA

• Limited consultation with CGCSA on children’s advertising section, which is now going to be gazetted as a separate regulation along with regulations on nutritional supplements and foods for special medical purposes

• Indication from DoH at the most recent Food Legislation Advisory Group (FLAG) meeting in September that the revised draft is finally heading for the DoH Legal Unit (who however apparently have a major backlog of work!)

MAYBE 2019???????

KEY CONCERNS REGARDING THE POTENTIAL NEW LABELLING & ADVERTISING REGULATIONS

• Will there be a realistic section covering a broader range of health and nutrition claims that informs consumers but gives them protection against unscrupulous marketers and makes provision for a clear process relating to validation of new claims?

• Is the children’s advertising section (albeit in a separate regulation) realistic and enforceable?

• Has the crazy section on religious logos been removed?

• Have the ‘funnies’ driven by what appear to be personal agendas, such as glycaemic carbohydrate, ‘fake foods’, statements of dietary fibre methodology and prohibitions on claims for products containing non-nutritive sweeteners, been removed?

IF THESE CONCERNS HAVE BEEN ADDRESSED, WE HAVE THE OPPORTUNITY TO IMPLEMENT A GENUINELY WORLD-CLASS PIECE OF FOOD LEGISLATION!

COMPOSITIONAL REGULATIONS• In general the DoH compositional regulations

are less controversial and easier to manage than those relating to labelling and advertising

• Commendable trend to align with Codex on compositional standards and use of food additives

• Most of our food additive regulations are either fully aligned with Codex or on track for alignment

• This will require some changes to local products but is desirable for reasons of standardisation, simplicity and future flexibility

ENFORCEMENT IS A MAJOR CONCERN FOR DoH LABELLING & COMPOSITIONAL REGULATIONS

• R146 comprises 53 pages of regulations + further 50 pages of Guidelines

• R429 draft comprises 108 pages of regulations + 143 pages of Guidelines (!!!)

• Totally unrealistic to expect EHP’s to manage this type of complexity in addition to all their other responsibilities

• There does not appear to have been a single prosecution made under R146

• Result is substantial non-compliance, particularly by imports and SMME’s

• We badly need a dedicated food law inspection function within DoH but there are huge legal and constitutional constraints currently preventing this

• May be possible as a compromise to establish an ‘enforcement advisory function’ within DoH that cannot itself enforce the regulations but which can provide technical advice to existing enforcement functions

• A DoH / CGCSA working party has been reviewing current enforcement procedures

HOWEVER, FOR MANY FOODS, SOUTH AFRICAN FOOD LEGISLATION REMAINS AMONG THE MOST COMPLEX IN THE WORLD!

• Reason is the technically complex, often confusing and arguably protectionist nature of much of the legislation in the DAFF administered Agricultural Product Standards Act

• Covers categories such as dairy, juices, canned, dehydrated & frozen fruit & vegetables, jam, fat spreads, cereals and (soon) processed meat

• Regulations cover both compositional and labelling requirements and override DoH requirements

• If your products are in these categories, you ignore them at your peril!

THERE ARE PRO’S AND CON’S TO THE DAFF REGULATIONS…

PRO’S

• Help to protect the public against poor quality products

• DAFF has a tradition of good & extensive consultation regarding new regulations

• Generally good, if complicated, technical rationale behind compositional requirements

• Enforcement is fairly good due to user of a dedicated inspection function that falls under DAFF rather than municipalities

CON’S

• Regulations are technically complex, often unnecessarily bureaucratic & unhelpful to consumers and in many instances out of line with global standards

• Historical protectionist background has been partially carried over to current systems i.e. actively discourage imports

• Jury is still out on whether current proposals to intensify inspection procedures, increase cost of inspections to industry and outsource them to SMME’s of questionable capabilities will achieve anything meaningful other than yet more bureaucracy

BUT IN SPITE OF ALL OF THIS, WE ARE NOT IN A BAD PLACE…• I have recently undertaken a major review of labels for a large

multinational company operating in may parts of the world (but with only very limited activities in South Africa)

• I am also doing a lot of consulting on labelling requirements for SA exporters

• This has given me the opportunity in the last few years to objectively assess the quality of our regulations relative to global best practices

• I have concluded that, other than a few ‘funnies’ unique to South Africa, we actually have some pretty good food labelling & compositional legislation

• The regulations generally contain a good measure of common sense and our consumers are well protected, PROVIDED WE GET ADEQUATE ENFORCEMENT AND RESPECT FOR THE LAW!

THANK YOU!