When the Consumer Protection Act (CPA) came into effect in 2011 it introduced a number of changes to existing trade- and consumer practices, seeking to regulate consumer affairs more readily and protect consumer rights. One area in particular which the CPA has affected is that of product labelling and trade descriptions.
What is a trade description?
The CPA defines a trade description as:
Any description, statement or direct or indirect indication other than a trademark as to:
- The number, quantity, measure, weight or gauge of any goods.
- The name of the producer or importer of any goods.
- The ingredients of which goods consist or material of which the goods are made.
- The place or country of origin of the goods.
- The mode of manufacturing or producing goods.
- Any goods being the subject of any patent, privilege or copyright.
The CPA stipulates that where a trade description is required to be affixed to any goods, it must be applied to the actual goods, alternatively affixed or attached to the goods in any other manner. Where it is not required that a trade description be applied to goods, it will be sufficient if that trade description is contained in a sign displayed in close proximity to the goods, in such a manner that it is easy to draw a correlation between the sign or notice and the goods to which the trade description applies.
What must always have trade descriptions?
The Minister may, from time to time, prescribe certain categories of goods to which a trade description must be applied. At present, the following categories of goods must have trade descriptions:
- Textiles, Clothing, Shoes & Leather
As a means of assisting consumers to make informed decisions about the goods that they purchase, any textiles, clothing, shoes and leather goods imported into the country or offered for sale in the country are required to contain a trade description written in plain and understandable language and which must be applied to the goods in a conspicuous and easily legible manner.
The trade description must contain the following information:
- The name of the country in which the goods where produced, manufactured or adapted.
- In the case of textiles, the producer/importer/manufacturer/seller must state whether any imported greige fabric is used in the production of dyed, printed or finished fabric, and if so then it must also be stated that the fabric has been printed or finished in South Africa from imported fabric.
- If goods have been manufactured locally using imported goods then the trade description must state “Made in South Africa from imported materials”.
- A statement that the goods conform to the South African standards for fiber content.
Where goods have been wholly assembled or made in South Africa, it will be sufficient for a trade description to state “Made in South Africa”.
In terms of the Product Labeling Regulations for Foodstuffs, the following is prescribed as the mandatory information on labels or packaging:
- The name and address of the manufacturer, importer or distributor.
- Instructions for use.
- Net contents.
- Country of origin.
- Batch identification.
- ‘Use By’ date.
- Ingredients, which are to be listed in order of descending mass.
- Identification of all known allergens contained in the products (i.e. nuts, shellfish, etc.) – these should be listed in brackets.
- Do not include nutritional information unless a Nutrient Analysis has been carried out by a SANAS approved lab.
Where goods are displayed in bulk for sale and the customer is able to choose how many kilograms they require, it is recommended that the price per kilogram be displayed in such a way that the customer is able to draw a direct correlation between the product and the price so displayed.
- Genetically Modified Organisms
Genetically Modified Organisms (GMOs) are defined in Section 1 of the Genetically Modified Organisms Act 15 of 1997. The following apply:
- Where goods contain at least 5% of GMOs irrespective of where the goods where manufactured or produced, the goods must be labelled in a conspicuous manner with a statement as follows: “Contains genetically modified organisms”.
- Where good contain less than 5% of GMOs then the goods must be labelled as follows: “Less than 5% of genetically modified organisms”.
- Where goods are produced using genetic modification processes then the goods must be labelled accordingly: “Produced using genetic modification”.
- Where it is not scientifically feasible or practical to test or measure the level of GMOs or ingredients in the goods, then it will be sufficient to label such goods as follows: “May contain genetically modified organisms”.
WHAT YOU MUST KNOW
- Very important: any trade descriptions applied to goods must not in any way mislead the consumer as to matter implied or expressed in that trade description.
- A trade description may not be removed, defaced, altered or covered in a manner that is calculated to mislead consumers.
- It is an offense for a supplier to make use of misleading trade descriptions or for a supplier to remove or alter a trade description or trademark.
ABOUT THE AUTHOR
Carmen Ronne was sworn in as an attorney on 17 August 2007. Prior to joining SEESA, she worked as a professional assistant with a number of private law practices specialising in civil litigation and Sectional Title/Body Corporate Management. She is currently employed as a legal advisor with SEESA Consumer Protection & POPI at our Durban office, and have been in this position since 2011.