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Consumer and Food Law" Are your lawyers engineers too? - We are." ™ |
Consumer and Food Law The fields of Food Law, Medicines Law, and Consumer Protection law are closely allied and often mentioned interchangeably in the press.
Of the three, Consumer Protection Law has, until recently, enjoyed the least attention and this complex field was largely unregulated. Recently the South African government identified the shortcomings in the protection of consumers and thus a Consumer Protection Act (which was signed by the President into Law on 24 April 2009 and came into effect in stages, the final stage being 31 March 2011). Please click here to read our Consumer Protection Act page...
The long await regulations for the Consumer Protection Act have been published for public comment and we are able to assist you with the interpretation of the impact thereof as well to prepare and submit comments thereon by the deadline of 31 January 2011.
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 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 which came into effect on 24 April 2010, 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.
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.
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. For more detail regarding the relevance of the Consumer Protection Act of 2008 on the Snack Food Industry, and which applicable to a greater or lesser extent to the entire food industry, click here...
Having been involved in every stage of the legislative process and having contributed comments to the DTI in the drafting stages of the legislation we are perfectly placed to advise you on the Consumer Protection Act.
We have contributed to a Dummies Guide to the Consumer Protection Act on the Foodstuff SA website, which can be read at http://foodstuffsa.co.za/index.php/Dummies-Guide-to-the-Consumer-Protection-Bill-it-s-importance-and-impact-for-the-food-industry.html
Other than the Consumer Protection Act, there are numerous 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.
If you believe that your attorney should be knowledgeable on consumer protection law and have a matter in which we can be of assistance then please send an e-mail to technology@hahnlaw.co.za or contact our Mr Luterek by telephone on +27 12 342 0563 or by fax on +27 12 349 9459.
Food manufacturers, wholesalers, retailers and the entire food supply chain is exposed to both civil and criminal liability in terms of various laws and regulations. What is often overlooked is the criminal sanction in terms of local by-laws of the various municipalities. The extent of liability is also not understood and may soon be radically changed by the Consumer Protection Act.
The food supply chain often deals with product liability on an ad hoc basis and believe that a voucher for a few hundred South African Rand can put everything right.
However, consumers are becoming ever more militant. In South Africa, laws are being drafted to give consumers teeth, such as the Consumer Protection Act and the recently published Food Labeling Regulations GN R146 (see below). In the light of the new legislative and regulatory environment, as well as the ever more litigious society we live in, food manufacturers, wholesalers, retailers, restaurants, and the entire food supply chain need to sit up and pay attention to product liability issues in the food industry.
One of our attorneys, Janusz Luterek, Pr.Eng, has spoken at conferences on this topic and has had a paper published at http://www.sheqafrica.com/liability-food-safety in which Janusz sets out the basis for both civil and criminal liability in the food field and warns against complacency.
In the paper Janusz concludes that manufacturers, importers, distributors, retailers, and food outlets have been lucky that the authorities and consumers have not been more aggressive in pursuing criminal prosecutions and civil claims. The tide is turning and the day of the voucher is fast coming to an end.
A copy of the article may be downloaded here.
Food and Medicine Law includes amongst other things regulation of labeling on foodstuffs, cosmetics and disinfectants as well as on medicines and food supplements.
Furthermore, an understanding of the issues which arise in food processing, and food science and technology greatly assist in the resolution of product liability claims, engineering disputes related to the food process engineering and specialized engineering in the field of pharmaceuticals and medicine in general. Our custodian membership of the South African Association for Food Science and Technology (SAAFoST) underpins our technical proficiency in this field.
In the article " Bridging the Legalese and Technobabble divide" published in the publication, Food Review, one of our attorneys, J F Luterek, Pr.Eng, wrote about how lay people often don't understand the ins and outs of the legal system, much less the legalese bandied about by lawyers when providing advice to their clients. Lawyers, on the other hand, often find it difficult to explain the legal process and legal position in easy-to-understand English which would permit their clients to make a truly informed position. Further, the situation becomes even more turbid when scientists and engineers begin to spew technical specifications of products and processes, often in acronym form (BOD, COD, PRPs etc), and a dispute arises as to whether or not a specification has been met. In these cases, the lawyers, usually having no or little exposure to science and technology, are at a loss as to what the dispute is actually about and it's quite possible that they may then churn out pages of legal advice which none of the scientists and engineers actually understand, and which may address only the legal issues and not the technological issues. A copy of the article may be obtained here.
Prior to entering the legal profession one of our attorneys was employed at the CSIR, Division of Food Science and Technology (as it was then known) and later at APV (as it was then known) and had extensive experience in the fields of brewing, dairy, fruit processing, and engineering services. It is this experience which is at your disposal in the resolution of customer product complaints, supply chain problems, and food engineering projects.
Due to the nature of attorney-client privilege and confidentiality it is often advantageous to have an attorney, who understands the technology at issue, to review a problem and advise thereon with little fear that such advice could be used against the client in a court of law as such advice could be seen as client-attorney privileged. This is an advantage of using an attorney who is a scientist or engineer too which is often overlooked and which should not be underestimated. It is our proposition that all HACCP and Food Safety Audits should be reported through an attorney for the above confidentiality and attorney-client privilege reasons.
We have provided advice to various corporations and institutions on proposed amendments to the Foodstuffs, Cosmetics and Disinfectants Act and the Regulations, the Medicines and Related Substances Act and Regulations thereunder, the Consumer Protection Act and Regulations thereunder, and serve on various committees of the Consumer Goods Council of South Africa (CGCSA) and attend Food Law Advisory Group (FLAG) meetings of the Department of Health.
The new
Food Labeling Regulations were published for comment on 20 July 2007 and after
nearly 2.5 years of deliberation GN R146 of 1 March 2010 brought the new Food
Labelling regulations into effect in two stages as from 1 June 2010 and 1
March 2012. These regulations have far reaching implications from a general
prohibition on claims of all types, except those specifically permitted under
GN R146, nutritional content labeling, and limits on advertising and endorsements.
One of the most contentious issues in GN R146 is the absence of transitional
provisions prescribing a period during which stock on hand and in trade may
be traded out while new stock complying with the regulations comes into effect.
Another topic of major concern is the apparent ban on GI labelling, which
seems to contradict the Department of Health's stated policy of encouraging
Low GI diets. A copy of the Food Labelling Regulations R146 and the Guidelines
thereunder can be accessed on our website using the following links:
Regulations
relating to the labeling and advertising of foodstuff
Guidelines
applicable to the regulations
Criteria
for the use of terms
Amendments
to R146-postponement and several changes
These Food Labeling Regulations Gn R146 should not be read in abstract and many other laws and regulations regulate the labelling of specific foodstuffs, for example, the Fruit Juice and Fruit Drink Regulations and the Agricultural Products Standards Act, Packaged Water (bottled water) under the Foodstuffs, Cosmetics and Disinfectants Act, and Dairy Products under the Dairy Regulations under the Agricultural Products Standards Act. In addition, the Consumer Protection Act, the General Effective Date of which has been postponed to 31 March 2011, also regulates the laeblling, marketing, and advertising of foodstuffs in so far as this relates to disclosure of information, provision of warnings and instructions, and generally prohibiting any sort of misleading or deceptive conduct. Please follow the link on this website to read our analysis of the effect of the Consumer Protection Act on Snack Foods, which is generally applicable to most foodstuffs to a greater or lesser extent. Click here...
If you believe that your attorney should be a scientist or an engineer too and have a matter in which we can be of assistance then please send an e-mail to technology@hahnlaw.co.za or contact our Mr Luterek by telephone on +27 12 342 0563 or by fax on +27 12 349 9459.