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food safety 5

Strictly speaking, the three laws are all different and in separate categories of the law.

Consumer Law and some related fields:

The close relationship between Food Law, Medicine Law, and Consumer Protection Law are often mentioned interchangeably in the press; although strictly speaking they are all different and separate categories of the law.

We will today look at these three branches of the Law and see how they interact with one another.

Food Law

Food law can be described as the intersection of all the various laws which regulate the sale of food, it's production, processing, and distribution and includes food science and engineering; so as to enable a thorough and practical understanding of these laws.

In South Africa, there is no single food law which can be referenced to determine compliance with the law; and for each product, one or more of the Foodstuffs, Cosmetics and Disinfectants Act, the Agricultural Products Standards Act, the Meat Safety Act, and the Consumer Protection Act can all be relevant. In addition, each of these Acts has a plethora of sometimes overlapping regulations promulgated thereunder to which should be added to the South African National Standards, some of which are compulsory depending on the foodstuff concerned.

An example of the complexity is the labelling of Genetically Modified foodstuffs where the Department of Health has a regulation requiring labeling of foodstuffs where the nutritional nature thereof has been altered and even permitting functional claims in respect thereof, and the Consumer Protection Act which requires the labeling of all foodstuffs which have in excess of 5% GM content to be labelled, without change, and worded “Contains Genetically Modified Organisms”.

These Acts and Regulations are constantly being revised and updated, often without due concern for how changes to one of them affect other related Acts and Regulations.

There are also allied fields of Sport and Health Supplements and Cosmetics which have their own regulatory regimes. Sport and Health Supplements are considered Complementary Medicines and are regulated as such under the Medicines and Related Substances Act and the Regulations thereunder. Cosmetics have been largely unregulated, however, the recently published Cosmetic regulations which deal with manufacture, ingredients, labelling etc are changing this landscape drastically.

In this complex field of where law meets science, it is critical to work with a legal team where the lawyers are qualified both in the sciences as well as in law and are able to understand the complex problems which may arise and provide practical advice thereon.

You need specialist advice if you are faced with legal issues related to this branch of the Law. He/she needs to have a knowledge of both food law and science and have experience in this complex field of the Law.

 Consumer Protection Law

Consumer Protection Law has, until recently, enjoyed the least attention and this complex field was until 2011 largely unregulated.  Seven years ago, the South African government passed the Consumer Protection Act (No 68 of 2008) and a number of associated regulations into law in terms of which consumers enjoy extraordinary protection against suppliers.

While the Consumer Protection Act beefs up protection for consumers, which is welcomed, the Act may have unforeseen consequences including increased prices as retailers, wholesalers, and manufacturers take steps to minimize potential losses and pay for future lawsuits.

As regards the liability for damage caused by goods, the major difference between the legal position in terms of Section 61 of the Consumer Protection Act, and the common law position on the liability of any person who is a link in the supply chain of goods to a consumer is that whereas the common law requires that the person be negligent or that there be breach of an explicit or implied contractual term, Section 61 imposes a no fault liability on any producer or importer, distributor or retailer of any goods for damage caused wholly or partly as a consequence of supplying any unsafe goods, a product failure, defect or hazard in any goods, or inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from or associated with the use of any goods, irrespective whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer, as the case may be.

Thus, the consumer may hold at their whim any or all persons in the supply chain liable for damages, the one paying the others to be absolved. A recent example of the possible application of this law on suppliers is the most recent listeriosis outbreak, the resulting deaths and the possible liability of Tiger Brands in a class action suit.

The Consumer Protection Act further provides that every consumer has a right to receive goods that are reasonably suitable for the purposes for which they are generally intended for, are of good quality, in good working order and free of any defects, will be useable and durable for a reasonable period of time having regard to the use to which they would normally be put and to all the surrounding circumstances of their supply, and comply with any applicable standards set under the Standards Act, 1993 (Act No. 29 of 1993) or any other public regulation.

 In addition to the right set out above, if a consumer has specifically informed the supplier of the particular purpose for which the consumer wishes to acquire any goods, or the use to which the consumer intends to apply those goods, and the supplier ordinarily offers to supply such goods or acts in a manner consistent with being knowledgeable about the use of those goods, the consumer has a right to expect that the goods are reasonably suitable for the specific purpose that the consumer has indicated and in any transaction or agreement pertaining to the supply of goods to a consumer there is an implied provision that the producer or importer, the distributor and the retailer each warrant that the goods comply with the requirements and standards contemplated above.

It goes even further and states that within six months after the delivery of any goods to a consumer, the consumer may return the goods to the supplier, without penalty and at the supplier’s risk and expense, if the goods fail to satisfy the abovementioned requirements and standards, and the supplier must either repair or replace the failed, unsafe or defective goods, or refund to the consumer the price paid by the consumer for the goods, at the option of the consumer. However, if a supplier elects to repair any particular goods or any component of any such goods, and within three months after that repair, the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered, the supplier must replace the goods, or refund to the consumer the price paid by the consumer for the goods. The above-implied warranty and the right to return goods are each in addition to any other implied warranty or condition imposed by the common law, this Act or any other public regulation, and any express warranty or condition stipulated by the producer or importer, distributor or retailer, as the case may be.

We specialise in Consumer Law and almost invariably act on behalf of the consumer’ although there are occasions where suppliers seek advice and legal services from us, we are perfectly placed to advise both consumers and suppliers on the Consumer Protection Act.

Other than the Consumer Protection Act; there are numerous other provincial and local authority Laws and Bye-Laws which regulate various aspects of consumer protection and which should be understood and incorporated into the procedures at all levels of the supply chain. Further, consumers should take account of the protection already offered by such laws and bye-laws and exercise their rights.

Finally, the Consumer Goods and Services Ombudsman was recently accredited under Section 82 of the Consumer Protection Act, see , and is now empowered to deal with consumer complaints in respect of the Consumer Goods and Services industries where these are not covered under other Ombud schemes such as the Motor Industry Ombud, see .

If you believe that you have a consumer-related issue and need advice and assistance contact Hugh at This email address is being protected from spambots. You need JavaScript enabled to view it. or contact him by phone on 082-0932304/028-3162832.

Please also visit our website at or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. with your legal questions.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

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