Consumer & Food Law

Hahn & Hahn Services

The fields of Food Law, Medicine Law, and Consumer Protection law are closely allied and often mentioned interchangeably in the press.

Food Law

Food law can be described as the intersection of all the various laws which regulate food sale, production, processing, and distribution, and food science and engineering to enable a through 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, Agricultural Products Standards Act, Meat Safety Act, and the Consumer Protection Act can be relevant. In addition, each of the Acts has a plethora of sometimes overlapping regulations promulgated thereunder to which should be added 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, “Contains Genetically Modified Organisms”.

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

Our senior partner, Mr Luterek, holds degrees in both Chemical Engineering and Law and is a registered Attorney, Patent Attorney, and a Professional Engineer and has worked in Food R & D at the CSIR, as a senior process engineer at APV, before completing his law studies and becoming a partner of Hahn & Hahn attorneys. He is a Custodian Member of the South African Association for Food Science and Technology (SAAFoST) and sits on both the Executive Counsel of the FSI of the Consumer Goods Council of South Africa as well as serving on the Food Law Advisory Group of the Department of Health. He has made numerous submissions both to Parliament and to the various government departments on proposed amendments to the various Food Laws and the Regulations thereunder.

We are the only South African members of the Food Lawyers Network (FLN), an international network of food lawyers around the world and through this network we are able to assist clients to get advice in other jurisdictions as well.

If you believe that your attorney should be knowledgeable on food law and science and have a matter in which we can be of assistance then please send an e-mail to janusz@hahnlaw.co.za or contact our Mr Luterek by telephone on +27 12 342 0563 or by fax on +27 12 349 9459 .

 

janusz@hahnlaw.co.za

 

Consumer Protection Law

Consumer Protection Law has, until recently, enjoyed the least attention and this complex field was largely unregulated.  In recent years, the South African government passed the Consumer Protection Act 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 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.

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.

Having been involved on behalf of industry 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.

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.

Finally, the Consumer Goods and Services Ombudsman was recently accredited under Section 82 of the Consumer Protection Act, see http://www.cgso.org.za , 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 http://www.miosa.co.za .

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 janusz@hahnlaw.co.za or contact our Mr Luterek by telephone on +27 12 342 0563 or by fax on +27 12 349 9459.

 

janusz@hahnlaw.co.za

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