New draft regulations on coffee products published
28/08/2009

On 11 June 2009, the Department of Health published draft regulations under the Foodstuffs, Cosmetics and Disinfectants Act, 1972 in terms of which it is proposed to regulate coffee products in various forms.

Interested persons may comment on the draft regulations before 11 September 2009.

Though they are intended to provide clear trade descriptions of coffee products, the draft definitions do leave some areas of ambiguity.

The draft regulations define “ground coffee”, “chicory” and “decaffeinated coffee”. They also distinguish between “decaffeinated ground coffee”, “decaffeinated instant coffee”, “mixed coffee or coffee mixture” and “coffee essence or extract”. The draft regulations include provisions to control the contents of chicory and coffee products that are sold together with milk and sugar, such as ready-to-drink coffee preparations.

Under current law, the use of the words “coffee” and “decaffeinated” is not regulated. Those and similar words may be used in relation to coffee or coffee products in any manner that is not contrary to the general principles that relate to misleading packaging and false advertising. These principles are set out in statutes such as the Trade Practices Act, the Merchandise Marks Act, the Foodstuffs, Cosmetics and Disinfectants Act, and the Agricultural Products Standards Act, or are recognised in the common law and the Advertising Standards Authorities’ Code of Ethics.

In general, the use of false trade descriptions in relation to goods that misrepresent their kind, quantity, quality, origin, mode of production or other characteristics of the goods is objectionable. However, as the law currently stands, a consumer who wishes to approach a court or the Advertising Standards Authority to prevent the alleged misleading use of a trade description in relation to a coffee product is first required to prove that the use of the term in question is misleading and is a false trade description without any specific definitions or potentially relevant terms.

If the draft regulations are approved, there will be an objective yardstick to determine whether or not the use of a particular trade description in relation to a coffee product is unlawful.

It will not be sufficient for coffee producers who promote their products to assure the public that their own internal standards are in accordance with the specifications set out in the draft regulations. There will be an obligation to obtain a certificate from an independent expert confirming compliance with the regulations in case there is a complaint.

This is because, before advertising is published, advertisers are required in terms of clause 4.1 of the Advertising Standards Authority’s Code of Ethics to hold in their possession documentary evidence to support all claims, whether direct or implied, that are capable of objective substantiation.

Any coffee producer that advertises its coffee as “ground coffee”, “decaffeinated coffee” or any of the other regulated terms relating to coffee products in the draft regulations would be required to have in its possession, at the time of publishing the advertising or labelling, objective substantiation that the requirements set out in the new draft regulations are met. This requirement will also apply to labelling on packaging, because the Advertising Standards Authority’s Code of Ethics also applies to labels on the packaging of goods.

An additional remedy available to consumers would be to lodge a complaint with the Department of Health. The use of advertising terms that are contrary to the specifications indicated in the draft regulations, if passed, will constitute an offence in terms of the Foodstuffs, Cosmetics and Disinfectants Act. The department has the power to impose a penalty on persons who transgress the Act and may confiscate products that do not comply with the Act and its regulations.
Coffee and Ground Coffee
The regulations define “coffee” as the seed of one or more species of Coffea and “ground coffee” as coffee that is roasted and ground or otherwise prepared in a form suitable for making an infusion or decoction. Exhausted or partially exhausted coffee and “foreign substances” are expressly excluded from the definition.
Decaffeinated Coffee
In terms of the draft regulations, decaffeinated coffee means coffee from which a large portion of caffeine has been removed. The regulations distinguish between “decaffeinated ground coffee” and “decaffeinated instant coffee”. In terms of the draft regulations, decaffeinated ground coffee shall not contain more than 0.1% caffeine and shall be labelled “decaffeinated ground coffee”. Decaffeinated instant coffee, on the other hand, may contain as much as 0.3% caffeine and shall be labelled “decaffeinated instant coffee”.
Coffee Mixtures
It is proposed that any product sold as “mixed coffee” or “coffee mixture” or under any similar name, with no ingredient other than coffee being mentioned in the name of the product, may only consist of coffee and chicory. In that event, it is proposed that coffee shall constitute not less than three quarters of its weight. The labelling must indicate both ingredients and the percentage of coffee and chicory, by weight.
Coffee Essence and Coffee Extract
It is proposed that “coffee essence” or “coffee extract” shall be prepared only from coffee but may contain sugar or other edible carbohydrates. Coffee essence or coffee extract may not contain not less than 0.5% caffeine.

The draft regulations do not define “coffee essence” or “coffee extract” and this is perhaps a shortfall that needs to be addressed. Arguably, any product that is extracted from coffee beans would qualify as an “extract”, in which case the regulations are ambiguous.
Chicory Products

Chicory, which is defined in the regulations as the dried roasted root of the plant Chichorium intybus, is often mixed with coffee, especially in cheaper products. The roasting process produces ash and the end product is treated before the chicory is dried and crushed into powder. The draft regulations propose that chicory shall contain no foreign substance other than a trace of earth or sand unavoidably mixed with the chicory during the process of collection, and a trace of any fatty acid used during the roasting process. The draft regulations state that the chicory shall yield no more than 7.5% total ash during the roasting process and the ash remaining undissolved after the chicory has been treated (it contemplates treatment in a solution containing 10% of pure hydrochloric acid) shall not exceed 3%. Clearly, this is an attempt to prevent coffee producers from adding starches or other products to chicory and coffee products so that the proposal will ensure better quality control of coffee products that contain chicory.

The draft regulations also indicate that “coffee and chicory essence” shall contain not less than 50% of coffee extract and not less than 0.25% of caffeine and shall be labelled “coffee and chicory essence” or alternatively “coffee and chicory extract”. There is some ambiguity concerning the definition of “coffee mixture”, which is not defined.
Coffee and Milk Products
In relation to coffee and milk products, it is indicated that “coffee and milk” shall be prepared only from milk, sugar and coffee or coffee extract and shall contain not less than 0.12% caffeine.

It is not certain what the position is regarding products that contain coffee but do not consist exclusively of coffee and milk, such as products which may contain mixtures of milk and chocolate. Perhaps the draft regulation that is proposed to apply to coffee and milk products is intended to apply to products that are marketed as coffee and milk and not other beverages that contain coffee. It would be useful if the draft regulations could be amended to provide more certainty on this issue.
Jenny Pienaar
Partner
jenny-p@adamsadams.co.za

Christophe van Zyl
Professional Assistant
christophe-v@adamsadams.co.za