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Draft labelling regs: Where to now with R3337?

So the deadline of July 21 for comment on the infamous R3337 has passed and, having spent a great deal of time in the last few months providing assistance to companies and organisations that will be affected by the new proposals on labelling and advertising, labelling expert Nigel Sunley takes stock and speculates a little on what will happen next.

Two overriding issues stand out in terms of the bigger picture. Firstly, the chaotic and disjointed process followed by the Department of Health in the publishing of the R3337 draft does not exactly inspire confidence in the government bodies tasked with regulating our food.

Then, to take no less than eight years and five months since the closing date for comment on its R429 predecessor to publish the initial R2986 on January 31, followed by the farcical process of re-publishing three further amended versions of the draft, finally culminating in the arrival of R3337 on April 21 (and even that version was without the relevant Guidelines which eventually materialised in mid-May), reflects appallingly on the administrative capability of the persons involved and has, unsurprisingly, resulted in much scepticism and cynicism from those on the receiving end.

Secondly, it is sadly clear that the gulf between the two parties involved in terms of the nutritional aspects of the draft is wider than ever.

On the one hand you have the food industry. The industry has not always distinguished itself in its responses to nutritional challenges with what, in my opinion, has been a reluctance to be much more pro-active on nutritional issues, coupled with too much emphasis on over-the-top food safety issues and interminable box-ticking audit procedures of questionable value undertaken at the expense of nutritional improvement.

However, at the end of the day, it simply wants to get on with process of feeding the nation with products that people want to purchase and to do so in a commercially viable manner in a stable environment.

On the other side you have a faction of public health fanatics (let’s call them PHFs for short). Nobody could find fault with their fundamental objective of reducing the incidence of diet-related NCDs, but this, unfortunately, comes coupled with some less desirable attributes.

These include a paranoidal hatred of the food industry and a desire to see it wiped from the face of the earth (fine, but what will replace it?), an ongoing and spectacularly naïve belief that extensive regulation will somehow force consumers to change their eating behaviour (it doesn’t, as we will see below) and, lastly, an even more spectacular level of ignorance on topics such as food composition, food science, consumer behaviour and the economics of the food supply chain.

I recall an incident at the recent Nutrition Congress where I gently pointed out to a speaker that the term ‘ultra-processed food’ might be better expressed as ‘food with poor nutritional composition’ only to be confronted with a foaming-at the-mouth PHF who stated that the term was ‘a creation of the food industry’. Not so.

That sort of silly sweeping statement and others such as ‘people before profits’ and ‘the food industry should be treated like the tobacco industry’ simply demonstrate the alarming level of emotional and bigoted technical and commercial ignorance that sadly exists within the PHF community, and contributes absolutely nothing constructive to resolving the issues concerned.

Caught in the middle is the Department of Health, and R3337 is its attempt to remedy the situation.

So what about the draft itself?

It is a vast rambling document of 245 pages plus a further 109 pages of Guidelines. The sheer scale of the document plus the reality that there has not, to the best of my knowledge, been a single prosecution of any individual or organisation under the current R146 regulations (with their mere 51 pages of regulations and about 80 pages of Guidelines) since their introduction in 2010, suggests that enforcement will simply be impossible.

Pity the poor Environmental Health Inspectors with the thankless task of managing this gargantuan and likely-to-be-unworkable creation irrespective of its actual content.

What about the content? It is a mish-mash of R146 and R429 with a lot of further additions. Some sensible new components are there such as compulsory nutritional information, some new definitions (but why are many of them scattered about the text instead of consolidated at the beginning?) and provision for nutrient function claims (although the requirements for most of these are so draconian that I doubt they will ever materialise in practice).

However, there are a lot of new components which glaringly show that these were not put together by people with any practical knowledge of food or its manufacture.

Why the need to change from ‘Best before / BB’ to ‘Best Quality Before’? If it ain’t broke don’t fix it, and have they ever heard of date-coding printers and their limitations?

An even more ludicrous proposal is an arbitrary minimum shelf- life of 12 months for imports. Ever heard of perishables? WTO and Technical Barriers to Trade, here we come.

Add to this things such as the frankly idiotic extension of analytical method statements on labels to fat content values, a hugely over-elaborate series of energy conversion factors and differentiated requirements for rounding off factors which are in conflict with basic mathematical principles, and it becomes clear that much of the drafting has been done by scientifically weak people lacking practical experience of food, possibly aided and abetted by a motley crew of rampantly anti-industry and technically clueless PHFs.

Throw in some completely impractical implementation dates and garnish the whole thing with the barmy ‘fake food’ concept, which is unique to South Africa, totally out of line with Codex (suspected to be the personal brainchild of a particularly way-out PHF), and you have some components which would be truly laughable if they did not appear to be genuine regulatory proposals.

The thorniest issues

Of course, the real hot potatoes are the FOPL and nutrient profiling requirements, coupled with major restrictions on claims, non-nutritive sweeteners, energy drinks and enrichment, and this is where the battle lines are going to be drawn.

The irony is that almost all of the industry people with whom I have interacted during the last few months accept in principle the need for simplified and easily understood nutritional information formats on their products. It is the manner in which it is being proposed that is causing concern.

Contrary to the rantings of the PHFs, food is not ‘dangerous’ but must rather be a subject for education on moderation and not for outright prohibition. Warning signs similar to those placed on toxic non-edible substances are not the way to go and, particularly when consumers see the same signs on all products within a category (show me a bar of chocolate that will NOT require FOPLs for sugar/polyols and saturated fat), they will just be ignored.  

All the above will be immaterial unless we answer the fundamental question of ‘WILL IT WORK’. We need to remember that the whole point of this saga is actually not to change labelling but rather to change consumer behaviour and reduce the incidence of diet-related NCDs, and no one could argue with that.

Chilean example is of no consequence

The PHFs point with great glee to Chile and their introduction in 2016 of regulatory procedures similar in many ways to those of R3337. All credit to Chile for being willing to act as the global guinea pig for this sort of initiative but it also means that we are now in a position to assess what has happened some seven years later, and a number of formal academic papers have duly been published in this area.

Frankly they do not indicate any changes that are likely to make much difference. The PHFs are always quick to reject any academic findings where the research has been funded by the wicked evil food industry but are then decidedly hypocritical when it comes to interpreting their own results.

A paper by Taillie at al published in the Lancet Planet Health proudly proclaims reductions in daily per capita consumption of:

  • 16.4kcal of energy
  • 11.5kcal of sugar when expressed as energy
  • 2.2kcal of saturated fat when expressed as energy
  • 27.7 mg of sodium 

Sounds impressive? It is in fact a cover-up for what are minimal impacts, and expressing values as energy equivalents is particularly deceptive. Try expressing the same figures as percentages of the WHO recommended daily intakes of those nutrients and we get:  

  • Energy – reduction of between 0.56% and 0.75% of WHO recommendations
  • Sugar – reduction of between 3.9% and 5.4% of WHO recommendations
  • Saturated fat – reduction of between 0.61% and 0.80% of WHO recommendations
  • Sodium – reduction of 1.4% of WHO recommendations.

We can conclude quite reasonably that the effect has indeed not been zero but is still minimal, and even the slightly better results for sugar are unlikely to have any significant effect on obesity or NCD statistics.

Another paper by Fretes et al in the International Journal of Behavioral Nutrition and Physical Activity concludes that ‘after initial implementation of Chile’s labelling law, intake of most key nutrients of concern significantly declined at school. However, we found evidence of compensatory behavior in out-of-school settings’.  

In other words, the kids buy potato chips and cooldrinks plastered with FOPL after school!

Another paper by Barahona et al reports somewhat better quantitative results, claiming reductions of 9% in sugar and 6% in energy, but these are expressed in terms of ‘values per dollar spent’ – what on earth does that mean and what about actual quantities consumed relative to global WHO recommendations?

The same paper also concludes that ‘on the demand side, labels induce consumers to substitute within categories rather than between categories’ and ‘the extent to which consumers substituted between categories due to the presence of labels is negligible’.

Interpretation of this academic-speak tells us that consumers might choose products with better nutritional properties within a particular category (and any food scientist will tell you that these in-category nutritional content differences are likely to be small) but they are not going to replace bars of chocolate with apples – surprise, surprise.

So, the PHFs can huff and puff about how wonderful Chile is but the reality seven years down the track is a bit different – indeed the Global Nutrition Report for Chile actually shows, for example, an increase in the incidence of obesity in females from 30.9% in 2016 to 33.9% in 2019. Can we expect South Africa to be any different?

The answer is almost certainly no but the DoH, pressurised by PHFs, the WHO and political imperatives, is determined to push FOPL through irrespective of its efficacy.

However, there is going to be strong industry pressure to pushback in the aforementioned areas of non-nutritive sweeteners (very poor evidence for this including a scientifically flawed and heavily criticised WHO Guideline); restrictions on enrichment (out of line with Codex and of questionable scientific desirability in view of the significant micronutrient deficiencies in SA, not all of which are addressed by staple food fortification); restrictions on energy drinks (out of line with global practice and are likely to be bitterly fought on commercial and legal grounds); and prohibitions on certain, often long-standing, trademarks for which legal battles are probably looming.

Likely scenarios ahead

We now have to wait and see what is going to happen after the hurly-burly of the last few months. I am going to delve into my crystal ball and for better or worse predict the following:

  • A huge number of submissions (there were over 100 of them in 2014) on the draft from industry and other affected parties.
  • Complete indifference from the public in spite of emotional campaigns filled with sweeping generalisations, anti-industry hate speech and misleading statements from HEALA and other PHFs to gather public support for FOPL.
  • A lengthy period during which DoH has to assimilate the submissions. We should sympathise with the huge task involved but…you created it, you deal with it!
  • One hopes that they will have the common sense to actually listen to the more rational and scientifically-based arguments and set up some knowledgeable working groups to tackle the more contentious components. That was not the case in 2014 – but we live in hope.
  • Much moaning from PHFs demanding, emotionally and irrationally, that industry comments should be ignored and accusing them of holding up the process. It should be pointed out that the delay from 2014 to 2023 was entirely of the DoH’s making, and I heard numerous comments from industry during that period along the lines of ‘for goodness sake, get on with it so we know where we are!’   
  • Publication of the final regulations, probably including FOPL and hopefully in a more rational form – but who knows when? Past history does not suggest speedy resolution.
  • Legal challenges if certain components of R3337 are retained. We have never seen this before, but such is the level of frustration by affected parties that it could happen this time.
  • More resulting fury from the PHFs about ‘delaying tactics.’ This should quite rightly be ignored – companies have every right to push back on unreasonable and badly motivated legislation, particularly if the supposed benefits are at best highly questionable.
  • Chaotic implementation, particularly for small businesses and imports, with rampant non-compliance and consumer confusion, even if a more realistic implementation timing is adopted, which should in any case be non-negotiable from the industry side.
  • Numerous inter-company legal squabbles in areas such as advertising and a complete inability by the authorities to police the regulations. Probable reluctance by companies to self-police any particularly controversial or over-complex sections.
  • Very importantly, an at best minimal discernible effect on obesity and NCD incidence after a few years i.e. Chile Mk2.
  • Further fury and industry blame-games from PHFs when the above becomes evident and demands for even more unworkable and ineffective legislative measures and taxes.
  • Maybe a forlorn hope that government and PHFs will eventually see the light and accept that legislative provisions have inherent limitations and that regulation and taxes WON’T WORK unless they are coupled with a really professional nutrition education campaign in schools that uses top quality creative marketing skills and all the advertising goodies that the government in its wisdom wants to ban such as cartoons, entertainment and/or sports celebrities and social media rah-rah.
  • Isn’t it amazing that most PHFs come from the education sector but seem to expect government and regulation to do their jobs for them while they polish their publication records and personal careers? There is plenty of education money available from the soft drink levy – for heaven’s sake use it rather than letting the proceeds disappear into the bottomless pit of questionable government expenditure.

I am, sadly, not optimistic about the final two points above – the let’s-blame-industry-for-everything-and-regulate-them-out-of-existence approach and the impractical and ideologically rather than rationally based bias of the PHFs is such that we will be in exactly the same position in 10 or even 20 years’ time.

We have over eight billion rapidly urbanising people to feed and the food industry, with all its imperfections but with huge capabilities, is critical to achieving this. If changes in our diet are to occur, they will result from the much more worrying global supply and sustainability issues that are going to affect the food chain in future.

We should be focusing on those and on comprehensive nutrition education for consumers and particularly children, rather than on naïve beliefs that people will voluntarily change their behaviour as a result of legislation. The words of George Orwell come to mind: ‘On the whole, human beings want to be good, but not too good and not quite all the time.’

Fitting words from the author of ‘1984’ and all its nanny-state predictions!

Authored by Nigel Sunley, Sunley Consulting. The above views are his and not necessarily those of any other individuals or organisations. You can contact Nigel here


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