Who moved my low fat natural mozzarella? – New dairy regulations
24 Nov 2015
Recently, the Department of Agriculture, Forestry and Fisheries (“DAFF”) sent a reminder to the dairy industry, urging all relevant stakeholders to ensure that their dairy and imitation dairy products comply with the new Regulations relating to the Classification, Packing and Marking of Dairy Products and Imitation Dairy Products Intended for Sale in the Republic of South Africa (“R260”). The new R260, which was published on 27 March 2015, repeals the current Dairy Products and Imitation Dairy Products Regulations (“R2581”) and comes into effect on 27 March 2016.
The new R260 sees a host of new classifications for dairy products being introduced. In the primary dairy products range, milk is now classified into 4 different class designations, being high fat, full fat, medium fat and low fat. Interestingly, currently low-fat milk is classified as milk that has a fat content of between 1.5% and 2.5%. However, under the newR260, milk that has a fat content of between 1.5% and 3.5% will now be classified as “medium fat”. 2% milk will, therefore, no longer be classified as “low fat”. This amended fat content criteria appears to be applied across all dairy and imitation dairy products and this will lead to the reclassification of many “low fat” products.
Drinking yoghurt has also been added as a class designation under the new R260, with the words “drinking” or “pouring” in the class designation referring specifically to the purpose of the product. Custard also now enjoys its own recognition as a dairy dessert, and it must now comply with the standards as set out in the new R260. According to DAFF, some of the standards for dairy and imitation dairy products under the new R260, have been aligned with international standards as set out in the Codex Alimentarius, a codified set of international standards, guidelines and codes of practice that contribute to the safety, quality and fairness of the international food trade.
Over and above the technical updates, the new R260 sees stricter marking requirements for dairy and imitation dairy products, with an ingredients list, “best by/ use by/ sell by” dates, and batch code indicators now becoming compulsory information to be displayed on the container of a dairy or imitation dairy product. This brings the new R260 in line with the Labelling and Advertising Regulations under the Foodstuffs, Cosmetics and Disinfectants Act of 1972, which govern the labelling and advertising of foodstuffs in South Africa. Those Regulations have specific requirements relating to the inclusion of ingredient lists on the containers of foodstuffs, and the appropriate use of “best by” dates on those products. It is interesting to see the collaboration between DAFF and the Department of Health, who enforces the provisions of the Foodstuffs, Cosmetics and Disinfectants Act.
Moreover, for years, the debate regarding the appropriate use of the word “fresh” in relation to milk has been ongoing, with the only guidance to producers being taken from the Labelling and Advertising Regulations. However, the newR260 now makes it clear that the word “fresh” may now be used in relation to pasteurised, ultra pasteurised and unpasteurised milk or raw milk and pasteurised and unpasteurised cream. The word is not defined any further, which is not helpful to understanding how the term may be used in relation to those milk varieties.
Over the years, foodstuff manufacturers have had the benefit of the doubt insofar as their use of trade marks on the containers of their products is concerned. Under the current Dairy Products and Imitation Dairy Products Regulations, a trade mark (registered or unregistered) may appear on the container of a dairy or imitation dairy product in a font size that is larger than the prescribed font size of the class designation of that product.
However, the situation changes under the new R260. Under the new Regulations, a word or expression may not be larger than the class designation of a product unless the word or expression is a registered trade mark. Dairy manufacturers must, therefore, ensure that their trade marks, as used on the containers of their dairy and imitation dairy products are registered, if those trade marks appear in a font size that is larger than the font size of the class designation that appears on the container of the product.
Still keeping with intellectual property, both the current and future Regulations prohibit the use of any word, mark, illustration or depiction that constitutes a misrepresentation directly, or indirectly, regarding the quality, nature, class, origin or composition of a dairy product or imitation dairy product. However, the current Regulations are slightly more lenient, allowing the use of words such as “natural”, “super” and “extra” or any other words which suggest that the dairy or imitation dairy product is of a special or particular quality, only if the word or expression is part of a trade mark. The new R260 has eliminated this exception prohibiting, outright, the use of words such as “natural”, “super” and “extra”, “pure” or “fine” or any other words which suggest that the dairy or imitation dairy product is of a special or particular quality. This has far reaching consequences for dairy and imitation dairy product manufacturers, who incorporate words such as “super” and “extra” into the names of their products. Moreover, the new R260 states that no registered trade mark or brand name which may possibly, directly or by implication, be misleading or create a false impression of the contents of a container that contains a dairy or imitation dairy product shall appear on that container. It remains to be seen if producers will adhere to these restrictive provisions in the new R260 or whether the provisions, which would, effectively, deprive producers of their intellectual property, will be contested by the industry.
For now, the current Dairy Products and Imitation Dairy Products Regulations remain in force, only to be repealed in March 2016 when the new R260 will come into effect. In the meantime, DAFF has implored the dairy industry to ensure that, by the time that the new R260 comes into force, the packaging for their dairy and imitation dairy products comply with the new Regulations.(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)