The Consumer's right to know about GMOs
11/08/2011

Introduction The Genetically Modified Organisms Act 15 Of 1997 (the GMO Act) governs the responsible development, production, use and application of genetically modified organisms (GMOs) and strives to ensure that all activities involving the use of GMOs (including importation, production, release and distribution) shall be carried out in such a way as to limit possible harmful consequences to the environment.

The GMO Act defines a genetically modified organism as “an organism the genes or genetic material of which has been modified in a way that does not occur naturally through mating or natural recombination or both”.

However, while the GMO Act might include provisions relating to the genetic modification of organisms, the development, production, release, use and application of GMOs and the use of gene therapy, the GMO Act does not govern the labelling of products that contain GMOs or the duty to disclose this information to the consumer. It is very possible that you and I have been consuming food that contains GMOs without even knowing it! While the use of GMOs in food is the subject of an entirely different debate, the legislature has decided that the consumer now has a right to know what he or she is consuming. In addition to strict labelling requirements regarding nutrient content tables that must be displayed on foodstuffs, the legislature also wants the consumer to know if he or she is consuming food that is not au naturale.
The Consumer Protection Act On 1 April 2011, the long-awaited Consumer Protection Act 2008 (the CPA) came into force. Section 3 of the CPA states that the purpose of the CPA is to promote and advance the social and economic welfare of consumers in South Africa by, amongst others, establishing a legal framework for the achievement and maintenance of a consumer market that is fair, accessible, efficient, sustainable and responsible for the benefit of the consumers generally and protecting consumers from unconscionable, unfair, unreasonable, unjust or otherwise improper trade practices and deceptive, misleading, unfair or fraudulent conduct. Furthermore, the CPA seeks to improve consumer awareness and information and encourages responsible and informed consumer choice and behavior.

Against this background and in the interest of consumer awareness, the CPA has introduced provisions relating to product labelling and the information that is displayed on product packaging.
Section 24 of the CPA – Product Labelling and Trade Descriptions It is necessary to know what the CPA defines as a trade description as this information is displayed on the packaging of goods and provides to the consumer the information that he or she needs to decide whether or not to purchase goods.

The CPA defines a trade description as any description as to the number, quantity, measure, weight, ingredients, the name of the producer, the mode of manufacture and the place or origin of the goods. A trade description is not a trade mark. It can be applied directly to the goods, or displayed with the goods or may be contained in any advert, sign, catalogue or brochure in which the goods appear.

Section 24 deals strictly with the application of trade descriptions to goods that are intended to mislead the consumer. In terms of this section a person must not knowingly apply to any goods any trade description that is likely to mislead the consumer as to any matter implied or expressed in that trade description. Furthermore, a retailer of goods must not offer to supply, display or supply any particular goods if the retailer knows, reasonably could determine or has reason to suspect that a trade description applied to those goods is likely to mislead the consumer as to any matter implied or expressed in that trade description.

In keeping with the spirit and purport of the CPA, the legislature included provisions in the CPA that deal with the disclosure to the public of the presence of GMOs in goods.
CPA and GMOs: Section 24 (6) and Regulation 7 Section 24 (6) of the CPA states that any person who produces, supplies, imports or packages any prescribed goods must display on, or in association with the packaging of those goods, a notice in the prescribed manner and form that discloses the presence of any genetically modified ingredients or components of those goods in accordance with applicable regulations.

Regulation 7 of the Regulations to the CPA covers the labelling of products that contain GMOs. In terms of the Regulations, all goods that contain at least 5% of GMOs, irrespective of whether or not the product was made in South Africa, must be labelled in a manner meeting the requirements of Section 22 of the CPA. The Regulations prescribe that a notice must be applied to these goods or to marketing material used in relation to these goods in a conspicuous and legible manner and size stating that the goods contain GMOs.

Furthermore, it is prohibited to state on packaging that a product does not contain GMOs unless the goods contain less than 1% GMOs. It is, however, permissible to state that the product contains less than 5% GMOs.

The CPA and its Regulations even go as far as to state that, if it is scientifically impractical to test goods for the presence of GMOs, a notice must be applied to the goods in a conspicuous and easily legible manner and size stating “May contain genetically modified ingredients”.

In summary, if your goods contain:

1. less than 1% GMOs: it is permissible to say that the goods do not contain GMOs;

2. more than 1% GMOs but less than 5%: it is permissible to say that the product contains less than 5% GMOs;

3. more than 5% GMOs: a notice must be applied to the goods in the prescribed manner indicating that the goods contain GMOs.

It is important to note that the duty created in terms of section 24 (6) lies with the producer, supplier, importer and packager of any goods that contain genetically modified organisms. In essence, this places a burden on each party in the supply chain to ensure that the goods that it passes through its hands bear the relevant notices pertaining to GMOs should the product contain more than 5% GMOs.

The nature of the notice that must applied to goods that contain GMOs is dealt with in Section 22 of the CPA.
Section 22 – Right to information in plain and understandable language Section 22 states that the producer of a notice that is required in terms of the CPA must display that notice in plain language, if no form has been prescribed for that notice.

There is no form prescribed for a notice informing a consumer of the existence of GMOs in goods. However, it appears from the wording of Section 22 that, if the notice is in plain language in terms of which it is reasonable to conclude that an ordinary consumer, with average literacy skills and minimal experience as a consumer of the relevant goods or services could be expected to understand the content, significance and importance of the notice, the requirement in terms of Regulation 7 of the CPA will be met.

The CPA is focused on the consumer’s right to know what he or she is purchasing and his or her right to choose what to purchase. With the implementation of laws relating to the disclosure to the public of goods that contain GMOs, the debate on gene therapy and the go-green revolution, it has now become the consumer’s right, and not privilege, to know what he or she is consuming and to choose whether or not to purchase products that contain GMOs.

Jenny Pienaar
Partner
Trade Mark Litigation
Natasha Wright
Associate
Trade Mark Litigation