While a fake handbag or pair of shoes no longer causes society in general to blink, the idea of fake food being sold has raised more than a few eyebrows. During the last few months of 2018, a spate of videos were circulated on social media showing demonstrations of how fake foods such as plastic bread, rice and eggs were made.
The National Consumer Commission (NCC), as well as the relevant government entities have not been able to determine the veracity of these videos. However, coupled with the Listeriosis outbreak faced by South Africans earlier in the year, it is better to be safe than sorry and know what to look out for and what to do in such cases.
Section 24 of the Consumer Protection Act (CPA) makes provision for the product labelling and trade descriptions of goods. Any business entity which produces, supplies, imports or packages any consumable item must display a notice in the prescribed manner and form, as set out by the Department of Trade and Industry, that discloses the presence of any genetically or otherwise modified ingredients or components of those goods in accordance with the applicable regulations. A trade description is used on the covering or label in which items are packaged or which is attached to the goods.
A supplier may not knowingly apply a trade description or product label to any item or good which is likely to mislead the consumer in any way, implied or expressly.
The consumer is always advised to read the labels of any food items carefully, especially to check if there are any storage instructions or warning messages. Labelling is important regarding whether the food contains common allergens such as gluten, wheat, eggs, peanuts, etc and where the food also contains certain levels of additives or carries contaminates or high levels of toxins which can cause disease after long term exposure if not checked.
In the event of “fake food” or improperly labelled foods, the consumer is to report the situation to their supplier as soon as reasonably possible. A formal complaint for liability for damages such as medical expenses may be filed against the supplier or the whole supply chain in terms of Section 61 of the CPA.
Labelling is important in terms of Section 61 of the CPA when determining the severity of the award to be issued against a supplier who has contravened Section 24 of the CPA.
If it has been determined by the supplier that that particular batch of the food item is defective, the supplier is required in terms of Section 60 of the CPA to enact a safety monitoring and recall procedure. This is to ensure that the unsafe food item is removed from the marketplace and the hands of the consumer.
There are 2 types of recall, a voluntary and mandatory recall. A voluntary recall is where the supplier takes the initiative and recalls the product themselves. Where the item is considered to be a danger to the safety of the public, the NCC must informed of the voluntary recall. A mandatory recall takes place where the NCC is alerted to the problem and instructs or orders the supplier to do a product recall.
With either type of recall, the public must be given a written notification of the recall with the following minimum information requirements:
- A clear description of the product, including the name, make and model and any distinguishing features, batch or serial numbers, including dates that the product was available for sale.
- A photograph or drawing of the product which will provide the consumer a visual representation of the product.
- A clear description of what the defect is which complies with the plain language requirements of the CPA. The defect should be described in simple terms so that the average consumer can understand, and reference to technical specifications should not be included where possible.
- A description of the maximum potential hazard and associated risk and where available, an appropriate hazard symbol should be include.
- A section titled “what to do”, which explains the immediate action the consumer is to take, for example, cease use immediately and return product to the place of purchase for a full refund. It should be clear that the consumer should return the product and not dispose of it. The supplier must ensure that it minimises the inconvenience to consumers to encourage consumer compliance with the recall notice.
- A section titled “contact details”, which explains who consumers should contact to receive a refund or have the product repaired or replaced. Include business and after hours telephone numbers, preferably toll free and website and e-mail address.
Be it Alfany Bread instead of Albany or Fulaid instead of Nulaid eggs, structures are in place to protect consumers from the hazards that are associated with such products.
ABOUT THE AUTHOR:
Charlene Botha is a Consumer Protection and POPI and Labour Legal Advisor at SEESA Port Elizabeth. Prior to joining SEESA, she practised as a Civil Litigation Attorney