Wine labelling in South Africa
23 Jun 2017
The relevant Act that governs and regulates labelling of wine products is the Liquor Products Act 60 of 1989 (“the LPA”). The LPA has specific regulations as well as a labelling guide that prescribes what can and cannot be incorporated on a wine label for product sold locally. When it comes to wines manufactured for export, labels must comply with the requirements of the destination country.
As wine is an alcoholic beverage it is not governed by the currently applicable R146 Regulations Relating to Labelling of Foodstuffs which would typically govern non-alcoholic beverages. There is, however, some overlap between the Regulations and guidelines that govern the labelling of wine and the labelling of food and non-alcoholic beverages.
Section 22 of the wine labelling guide states that prohibited terms on wine labels are terms that could create a misleading impression. The guidelines do not explicitly state what content is “misleading” per se, but section 12 of the LPA itself essentially prohibits the use of any name, word, expression, reference, particulars or indication in connection with the sale of a liquor product in a manner which creates or is likely to convey a misleading impression as to the nature, substance, quality, composition or other properties, or the class, cultivar, origin, age, identity of manner or place of production of the liquor product..
A trade mark would constitute the name of the product and is therefore subject to the provisions of section 12 of the LPA. The name of the wine or the trade mark must not be misleading. How this will be applied and enforced in practise may be tricky given the fact that many wines have interesting names such as names of people, places or things. Realistically consumers are not going to believe that they have a “fat bastard” in their Shiraz. A name like this may allude to a characteristic inherent in a wine, namely that it is full bodied.
Once a wine manufacturer has devised a name that is not misleading, it is essential to ensure that the name is available to be registered, and used, as a trade mark. Similarly, if you elect to adopt unique artistic components on your label there is an option to file nude label marks. These kinds of marks may exclude the Estate’s house brand and descriptive matter such as “Preservative Free” or “Contains No Sulphites” but includes interesting patterns or artworks that may serve as product, source and brand identifiers to consumers.
Section 12 of the LPA also extends to certain descriptors typically included on a wine label i.e. specification of origin such as SWARTLAND WINE OF ORIGIN or reference to an ingredient included in the product or manner of production i.e. use of Rooibos and Honeybush wood chips to reduce sulphite content. Similarly, this information must be accurate and must not misdescribe the product or confuse the consumer as to the origin and/or composition and/or manner of production of the product.
If a wine maker utilises the services of a third party graphic designer to conceptualise a new logo or artistic work to place on a wine label, then he must ensure that the copyright is assigned to him by the graphic designer. Our South African copyright laws are slightly outdated and don’t make provision for ownership of copyright to automatically transfer to a commissioning party of a graphically designed artistic work. As such, ownership of copyright can only be transferred in writing.
Now let’s look at some other essentials to include on a wine label as per the LPA wine labelling guide. Except for the volume declaration, the expression “contains sulphites”, the lot identification and the health warning, all mandatory items, must be within the same field of vision on one or more labels of a container – obviously not on the base of a container. Most mandatory items have to adhere to certain criteria including size specifications and font type, and certain class designations must be indicated on the label depending on the sugar content contained in the wine.
What is also necessary to include on a wine label is the name of a “responsible seller” which is defined as “someone by or for whom wine is bottled with a view to the sale thereof” and must be indicated in full i.e. XYZ (Pty) Ltd.  Alternatively, this can be represented by a code number once approved by the requisite administering officer at the Department of Agriculture. There must also be no doubt about the origin of the wine and this must be clearly demarcated on the label. The name of an applicable origin area must also be used on an estate wine, e.g. “Wine of Origin Stellenbosch” coupled with “Kanonkop Estate Wine”. Specifying the country of origin on a label is not compulsory for wine sold into the local market, but must be included on wine for export.
Section 14 of the LPA wine labelling guide deals with how labels make reference to the cultivars included in a wine. If at least 85% of a wine is made from one cultivar, any other cultivars included in a wine, need not be referenced on the label. Where the cultivars in a blended wine are indicated, the cultivars must appear in descending order on the label according to volume. The vintage year must also appear and it must be clear that such year is indeed the vintage year.
Lastly, all labels for certified wine must, prior to printing, be submitted to the Label Committee of the Wine and Spirit Board for approval. Certified wine refers to wine produced in terms of the provisions of the Wine of Origin Scheme. Should the product be for export, then it is recommended that an expert be approached to get guidance on what can and cannot be included on labels in the specific destination countries. Similarly, ensuring that your trade marks which may include label marks, and all copyright that may subsist in same complies with the wine labelling laws can be assessed by KISCH IP. Section 4 of the LPA Wine Label Guidelines – Extracted from http://www.sawis.co.za/winelaw/download/LABELLING_REQUIREMENTS_FOR_SOUTH_AFRICAN_WINE_2013.pdf as at 9 May 2017.  Section 12 of the LPA Wine Label Guidelines – Extracted from http://www.sawis.co.za/winelaw/download/LABELLING_REQUIREMENTS_FOR_SOUTH_AFRICAN_WINE_2013.pdf as at 9 May 2017.  Section 15 of the LPA Wine Label Guidelines.  Section 1 of LPA Wine Label Guidelines – Extracted from http://www.sawis.co.za/winelaw/download/LABELLING_REQUIREMENTS_FOR_SOUTH_AFRICAN_WINE_2013.pdf as at 9 May 2017. (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.)