Department of Agriculture has a beef with plant-based sector over product names
The Department of Agriculture is taking a hard line in apparent support for the meat industry, instructing the Food Safety Agency to start seizing plant-based products within 30 days that it believes are not compliant with regulations. The imminent seizures will cause significant losses for the sector, cripple businesses and deprive consumers of choice.
If it’s not processed meat in the packet, it cannot be labelled as such. It sounds like fair warning to producers of plant-based goods but the Department of Agriculture, Land Reform and Rural Development (DALRRD) has been lambasted for its rash and ham-fisted threats to ban and seize foodstuff not in line with Agricultural Product Standards Act regulations, in the absence of any leadership in the matter.
Not only that – the food sector has accused the department of an incorrect interpretation of the regulations and threatened to take the matter further.
After initially threatening an immediate ban, the DALRRD has now given “stakeholders” a temporary respite, warning them to correct product names “prescribed for processed meat products”, or face sanction within 30 days of 24 June 2022.
The consequences of the clampdown could be economically crippling for producers of vegan and vegetarian products because they will be required to relabel goods – many of which have a short and sensitive shelf life – at significant cost, or face the destruction of the goods and other sanctions.
Not mincing words?
The act regulates agricultural produce such as dairy, meat, fruit and vegetables, specifying definitions, classifications, the various grades within the product categories, label claims and production practices.
The DALRRD’s narrow interpretation of the Regulations Regarding the Classification, Packing and Marking of Processed Meat Products (Reg 1283) precludes plant-based “meats”, which means “mushroom biltong”; plant-based “meatballs”, “salamis”, “nuggets”, “burgers” and “strips”; plant-based “bratwurst”, “chorizo” and other “sausages”; “meatless meat” and “eggless eggs”.
Reg 1283, introduced in 2019, defines “processed meat” as meat that has “undergone any action that substantially altered its original state [including, but not limited to, heating, smoking, curing, fermenting, maturing, drying, marinating (surface application), extraction or extrusion or any combination of all these processes], but excludes raw processed meat”.
In recent weeks, the DALRRD has issued two communiques to producers and suppliers, in which it warned product names for sausages, strips, burgers, meatballs and other non-meat foodstuff are illicit. As such, these goods should be withdrawn from the market immediately for relabelling, or destruction.
The extraordinary salvo to the food sector not only affects plant-based producers: It creates a ludicrous scenario in which, strictly speaking, even fruit mince (used for generations in Christmas mince pies), soya mince (a textured vegetable protein developed in the 1960s) and even garden-variety vegetarian burgers (served commercially for the first time in a London restaurant in 1982) will have to be relabelled.
On 2 June, after a meeting between the department and the Food Safety Agency, Woolworths was instructed that its plant-based egg substitute JUST Egg could not be sold as “eggs” as it was misleadingly labelled because it is not produced from domesticated chickens, turkeys or ducks and therefore a violation of Regulation 345, regarding the grading, packing and marking of eggs intended for sale.
The authority gave Woolworths a week to rectify the issue, or it would seize the products. On Sunday, 26 June, the product did not appear on the retail giant’s website.
Last week, on 22 June, the department issued a second letter, instructing the Food Safety Agency to seize and remove any plant-based products using names that traditionally refer to animal-based products in terms of section 8 of the Agricultural Product Standards (APS) Act 199 of 1990.
“In terms of section 11 of the APS Act, it is an offence to use product names that are prescribed or reserved for processed meat in the sale of meat analogues.”
Included in the list of plant-based meat alternative products are vegan veggie biltong, mushroom biltong, plant-based meatballs, vegan nuggets, vegan BBQ ribs, plant-based bratwurst, chorizo and red pepper vegetarian sausages, and plant-based chicken-style strips.
ProVeg International, a vegetarian food awareness organisation, has accused the egg industry of being behind the communiques, saying it wants “to protect its market share rather than the customers it claims are being misled by transparent and honest packaging and marketing”.
“In fact, banning the use of meat or egg-related terms might cause more confusion for customers who have grown to like or even need these alternatives”, the organisation said.
A preposterous interpretation?
The department has been accused by many in the industry of relying on an incorrect – and ludicrous – interpretation of the regulations.
Pioneer of the plant-based category in South Africa, Fry Family Foods issued a swift response to the restrictions on Friday.
“Fry’s, along with many of South Africa’s plant-based food stakeholders, believe that Regulation No 1283 does not apply to plant-based meat alternatives, and we therefore do not believe that it is reasonable. The regulations explicitly state, in 2.2.c thereof, that: ‘These regulations shall not apply to the following foodstuffs: Meat analogue products or non-meat based products that in general appearance, presentation and intended use correspond to processed meat products [e.g. vegan or vegetarian type processed products].
“At no point have we felt that our naming conventions were confusing for consumers, and in fact, our product names play an important role in helping our consumers understand how to use our products. We feel strongly that if we cannot use product names like ‘burger’, ‘sausage’, ‘nugget’ or ‘mince’ it will create confusion for consumers. Our consumers appreciate clear direct communication.”
Industry consultations … or lack thereof
On Friday, 24 June, temperatures flared during a meeting between the department and the plant-based sector.
Billy Makhafola, the director of food safety and quality assurance in the department, told the sector that nothing in the communiques was new, as they were already contained in the act. “We are lifting up [sic] obvious facts from the act itself from the regulation itself. So what we actually sought to do was to say please use product names appropriately, in connection with the product for which regulations have been developed.
“And the other thing was just to reflect on obvious provisions from the Act, which may be used in order to seize products that are found not to be compliant. And in this case, we’re talking about the analogue amid analogue so that there are names that actually be used and those names are exclusively prescribed for processed meat products.”
Donovan Will, of ProVeg South Africa, asked for clarity on the labelling because the food awareness organisation he represents has taken two attempted bans to the European Parliament – and won. Known as the “veggie burger ban”, the action was proposed by the meat industry in Europe in 2019 but defeated a year later.
“The regulation disrespects consumers,” Will added. “There is no evidence to show that people are confused by meaty names for plant-based foods. In fact, evidence from Australia, Europe and the US prove they are not confused.”
Will, who did not discount legal action, asked: “Why would we want to go through that when the legal precedents have been set somewhere else very clearly…
“We also want to know the rationale behind why now and who we are trying to protect. Are we trying to protect consumers? Is the department saying that consumers are confused if someone calls something a meat-free chicken-style nugget, because we’ve done the research and no one is confused by that.”
Another attendee asked whether the department was also going to pursue producers of fruit mince, coconut milk and peanut butter: “Consumers have definitely not been misled; this has nothing to do with consumers. There was no consultation with all stakeholders. This has suddenly been sprung onto manufacturers, importers and retailers. The regulations might have been around for three years, but now suddenly, you say ‘comply’. It’s absolutely unacceptable.”
An importer said: “We imported over a million dollars worth of stock. It came through customs. It was reviewed by the Health Department. We went through all the channels and the NCRs approved my packaging. Now we are told to remove that stock and these all have very short lifespans on them. This has a huge impact and we are a small player in the market. There are bigger players and many, many millions of rands are at stake. Surely there has to be a reasonable timeline to change the naming conventions?”
The economic fallout was reiterated by Fry’s spokesperson Genevieve Cutts, who said the impact on the business of recalling, relabelling and repackaging would be massive at a time when the government should be supporting local business growth rather than making it harder for them to operate.
A producer noted: “We are actually in line with international regulations in terms of what we’re doing [as a plant-based community]. You can still say plant-based burgers in all of Europe. This is actually a problem for a company that will one day want to export its products. We’ll have to call it [by an unrecognisable name], when they are used to seeing ‘plant-based’ on the label. You’re now going to restrict further business and opportunity to entry based on the regulation which is backwards. I’m angry. This is ridiculous and people will fight it.”
‘Bull in a china shop’
Hahn & Hahn attorney Janusz Luterek commented later that the department has gone after the sector like a bull in a china shop.
“First they published the egg communiqué and now this meat analogue one. I don’t disagree with [clamping down on labelling]. You can’t be selling products which claim to be meatless meat or something. But I just think one must not swing the pendulum too far.”
Luterek, who is also a patent attorney, said the confusion of the public should be judged not when they are sitting at home, but rather when they are holding the packet in the store, making the choice between goods on the shelf in a second. “What’s your likelihood of confusion? That’s the test because by the time the consumer has arrived home, it’s already too late. So, when you name a product, I believe you should be clear about what it is.”
On Friday, after the meeting, Makhafola wrote to participants, saying the “seizure of meat analogue products using product names prescribed for processed meat products will be delayed by a period which will be communicated to all stakeholders by the assignee [Food Safety Agency]…
“In the meantime, the assignee [will also] conduct an environmental scan to determine how widespread the sale of meat analogue products using names prescribed for processed meat products is.”
At another meeting later in the day, the department agreed to delay the product seizures by 30 days, pending an extensive market survey. BM/DM
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