South Africa: Signs of the (regulatory) times

Several proposed regulatory changes are in the pipeline for South Africa, affecting advertising and monopolies in relation to IP rights. This article seeks to provide a summary of those changes.

A high steaks case is to be heard in South Africa regarding regulations relied on by the Food Safety Agency of The Department of Agriculture, Land Reform and Rural Development to seize meat analogues from the trade, which have been described in the same regulations as a product that approximates the aesthetic qualities and/or chemical characteristics of specific meat types, made from non-meat ingredients.

This would mean that manufacturers of plant-based foods must refrain from adding descriptions to their products that are accepted as descriptors for processed meat products such as “sausages” and “biltong”. The rationale is that these terms applied to plant-based goods are misleading.

Defenders of plant-based goods argue that these regulations do not appropriately apply to such goods and that further and better legislative reform is required. In the meantime, new regulations relating to the labelling and advertising of foodstuffs promulgated under the Foodstuffs, Cosmetics and Disinfectants Act were also published earlier this year, which regulations state that subject to the Agricultural Product Standards Act, the name of the foodstuff must appear on the main panel and the name of the foodstuff or its description must be sufficiently precise to avoid misleading or confusing the consumer regarding, inter alia, the true nature of the foodstuff. These regulations are open for comment until the end of April 2023.

Vapes

With pressing public health concerns, the government sought to introduce an increased vaping tax from January 2023. This proposal aligned with the prerogative to pass new Tobacco Laws in South Africa, namely The Tobacco Products and Electronic Delivery Systems Control Bill. This Bill is before Parliament and seeks to regulate vapour products in the same manner as traditional tobacco products.

The coming into operation of the Bill may see vaping banned in public and in outdoor areas. The Bill also allows for the promulgation of further regulations affecting the use, packaging and labelling of tobacco products and electronic delivery systems used for vaping. Indeed, it has proposed plain packaging for tobacco products- a silent killer of a different kind.

In the interim, an appendix on vapour products has been added to the Code of Advertising Practice (“the Code”) by the Advertising Regulatory Board (ARB) on behalf of Vapour Products Association of South Africa, a member of the ARB. It addresses the challenges involved in the marketing of vapour products and marketing to minors.

Crypto assets

To money matters, the ARB also introduced clause 17 to Section III of the Code in January this year. The clause requires that advertisements in relation to crypto assets state expressly and clearly that investing in such assets could result in the loss of capital.

A balanced message regarding the benefits and risks associated with the product or service offered should be conveyed in an understandable and non-cryptic manner in advertisements.

This follows the declaration of crypto assets by the Financial Sector Conduct Authority (FSCA) as a financial product in South Africa in October last year. NFTs, however, seemingly remain in a class of their own, given their non-fungible nature. Consumers would be wise to read carefully before betting their Bitcoin.

Indigenous knowledge

In advancing positive protection for indigenous knowledge in the country, regulations were published in November 2022 under The Protection, Promotion, Development and Management of Indigenous Knowledge Act, 2019. This Act seeks to manage the rights of indigenous communities, including for commercial gain. These regulations propose the format of a register for indigenous knowledge, much like a Register of Trade Marks.

However, protection for these rights will be limited to those registered and will apply to South Africans. This marks a further step in the right direction for South Africa, while the world awaits an international instrument to protect indigenous resources. IP rights holders and hopefuls should be careful in ensuring that their creative pursuits do not conflict with indigenous knowledge rights and that an appropriate licence is obtained.

Kim Rampersadh is a partner and trademark attorney at Adams & Adams. She can be contacted at:  kim.rampersadh@adams.africa