LABELLING & REGULATORY · CONSUMER PROTECTION ACT

The Food Label as a Legal Defence: Section 61 of the Consumer Protection Act and Your Real Exposure

By Mthokozisi Nkosi, Food Safety Specialist & Lead Auditor, ASC Food Safety · 13 min read

Section 61 of the Consumer Protection Act 68 of 2008 makes producers, importers, distributors and retailers liable for harm caused by unsafe goods, by a product failure, defect or hazard, or by inadequate instructions or warnings, irrespective of negligence, and their liability is joint and several. Your label, governed by R146 of 2010, is the cheapest control you own. ASC label reviews run five to seven business days.

Why is a compliant label the cheapest liability control a manufacturer owns?

A metal detector costs six figures and protects one hazard at one point. A label costs cents a unit and carries every warning, instruction, allergen declaration and claim the law requires you to give a consumer. Under section 61 of the Consumer Protection Act 68 of 2008, inadequate instructions or warnings are a ground of liability on their own. The label is the control.

Most technical managers treat labelling as an artwork and marketing problem that happens after the food safety work is done. The Act treats it as part of the product. Section 55 gives a consumer the right to goods that are reasonably suitable for their intended purpose, of good quality and free of defects. Section 58 requires a person who packages hazardous or unsafe goods to put adequate instructions for safe handling and use on the packaging. Section 61 then attaches liability to failures in those areas without asking whether you were careful.

Look at the economics honestly. A label review is a defined piece of specialist work with a known cost. A recall is an open cost with a tail that runs for months: recovered stock, destruction, re-labelling or reprinting, downtime, retailer recovery charges, lost listings, legal time, and a civil claim that sits on your balance sheet until it settles. The control that prevents the second is cheaper than the first line item of the second by an order of magnitude, and it is the only food safety control that also protects your marketing claims.

A label is the only control in your factory that works after the product leaves it.

There is a second reason, and it is the one that changes how you resource the work. Nearly every other control fails visibly and locally. A label error fails silently and is replicated across every unit of every batch printed with that artwork. A single wrong word on a sleeve is not one non-conformance. It is the same non-conformance eighty thousand times, already in the trade.

What does section 61 of the Consumer Protection Act actually do to a food business?

Section 61 is headed “Liability for damage caused by goods”. In plain language, it makes producers, importers, distributors and retailers liable for harm caused by supplying unsafe goods, by a product failure, defect or hazard, or by inadequate instructions or warnings, and it states that this applies irrespective of whether the harm resulted from negligence. Where more than one party is liable, their liability is joint and several.

That single change matters more than any other consumer law development for a food manufacturer. Before it, a claimant generally had to prove fault. Under section 61 the argument moves to whether the goods were unsafe, whether there was a defect, failure or hazard, and whether the warnings were adequate. Your internal quality standards are relevant to your defence, but they are not the test.

The section also sets out what harm is recoverable: death or injury to a natural person, illness, loss of or physical damage to property, and economic loss that results from that harm. The court decides matters of proof and the assessment of damages, including economic loss, and it apportions liability among parties who are jointly and severally liable. That is a paraphrase of the section, not a quotation.

What do unsafe, defect, failure and hazard mean for a food product?

The Act defines all four in section 53(1), in Part H of Chapter 2, and the definitions are broader than most food teams assume. A defect covers a material imperfection or a characteristic that makes goods less useful, practicable or safe than people generally would be reasonably entitled to expect. Unsafe means the goods present an extreme risk of personal injury or property damage.

The table below is a plain-language summary of the four defined terms with a food example for each. It is a summary written for technical managers, not a quotation of the Act.

Notice what the fourth ground adds. Even where the food itself is fine, section 61 reaches inadequate instructions or warnings. Cooking instructions that do not deliver the time and temperature your validation relies on, storage instructions that do not match the shelf life study, a reconstitution instruction that produces the wrong dilution in an infant or medical nutrition product: all of these are label failures on a physically compliant food. Our guide to best before and use by date marking covers where date marks and storage instructions most often come apart.

How does an allergen declaration failure become a section 61 claim?

An undeclared allergen is the cleanest section 61 claim there is. The consumer bought a product, ate it as intended, and was harmed. The allergen was in the food and not on the label. Causation is usually easy to show, the harm is documented in a hospital record, and the claimant does not need to prove that anyone in your business was careless.

Regulation 43 of R146 of 2010 lists the common allergens for South Africa: egg, cow’s milk, crustaceans and molluscs, fish, peanuts, soybeans, tree nuts, and cereals containing gluten, meaning wheat, rye, barley, oats and hybrids such as spelt and kamut. Do not work off the European list of fourteen. Sulphur dioxide is not a common allergen under regulation 43, but regulation 38 requires it to be declared where it is present at 10 mg per kilogram or more, and at any level in certain cases such as transfer from packaging materials and treated fresh produce.

R146 also carries regulation 44 on uncommon allergens, regulation 45 on allergen cross contamination, and regulation 46 on allergen-related claims such as gluten free. The last two are where sites get into trouble. A precautionary statement is not a free pass. If your register shows no assessed cross contact route and you printed a may contain statement anyway, you have written a warning that dilutes every genuine one on the shelf, and section 41 of the Consumer Protection Act deals with representations that mislead. If your register shows a real cross contact route and you did not print anything, you have an inadequate warning.

• Declaration built from the supplier specification, not the recipe card. The allergen you did not know about is almost always in a compound ingredient, a processing aid or a carrier in a flavour or colour.
• A documented cross contact assessment behind every precautionary statement, covering shared lines, shared utensils, airborne carryover, rework and cleaning validation.
• Change control that reaches artwork. A supplier switch, a flavour house reformulation or a rework decision must trigger a label check before the next print order, not after it.
• Label reconciliation per run, counting labels issued, applied, damaged and destroyed, so that a wrong sleeve on the wrong product is caught in the factory.
• A retrieval route from batch code to artwork version, because that is what you will need on the day you have to decide the scope of a withdrawal.

We have written the detail of the cross contact scoring elsewhere, in the allergen labelling guide and on the training site in the piece on allergen management, cross contact and labelling in South Africa. This article is about what happens after the failure reaches a consumer.

Who carries the liability: producer, importer, distributor or retailer?

All four, and where more than one of them is liable, section 61 makes that liability joint and several. A consumer can sue the retailer where they bought the product. The retailer does not have to find the manufacturer first. The court can then apportion liability among the parties found jointly and severally liable, which is where your supply agreement and your evidence decide who actually pays.

Importers should read this section twice. Where a foreign supplier’s label is the source of the error, the importer is the party standing in front of the South African consumer. Our article on importing food into South Africa deals with the entry requirements, and Port Health can detain a consignment at the point of entry on a labelling ground long before anyone is harmed.

What defences does section 61 give you, and which ones does a label support?

Section 61 sets out its own exceptions. Paraphrasing rather than quoting: liability does not attach where the unsafe characteristic is wholly attributable to compliance with a public regulation, where the defect did not exist when that person supplied the goods onward, where it is attributable to instructions from the supplier, where a distributor or retailer could not reasonably have discovered it, or where the claim is out of time.

Read those against your document set and one thing becomes obvious. Three of the five turn on proving what was true at a specific moment, in a specific consignment, for a specific party. That is a records question, not a legal one, and it is decided long before an attorney is involved.

1. Compliance with a public regulationNarrow, and only useful where the regulation compelled the characteristic. Fortification of wheat flour, maize meal and wheat bread under R.504 of 7 April 2003, as amended by R.1206 of 2008, is the kind of compulsion this contemplates. It is not a general defence for having followed R146.
2. The defect did not exist when I supplied the goodsThis is a traceability and release-records defence. It needs batch level evidence of what left your gate: the artwork version applied, the reconciliation record, the release check, the dispatch record and the storage condition at handover.
3. I followed the instructions of the person who supplied the goodsRelevant to co-packers, repackers and over-labellers. It lives or dies on written instructions, an approved artwork file received from the brand owner, and a signed technical agreement. A verbal instruction from a customer is not evidence.
4. A distributor or retailer could not reasonably have discovered itThe mirror image for the trade. It gets weaker every time the party in question actually runs an artwork approval process, because a process you operate is a process you are expected to operate properly.
5. The claim is out of timeA procedural ground, and the reason your retention period matters. Records destroyed at two years cannot support a defence to a claim brought inside the three year window the section describes.

How do R146 of 2010 and the Consumer Protection Act interact?

They run on separate tracks toward the same pack. R146 of 2010, published in Government Gazette 32975 on 1 March 2010 under the Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972, is administrative food law enforced by inspectors. The Consumer Protection Act is consumer law that gives an individual a civil claim. Complying with the first does not extinguish the second, and a single label error can trigger both.

Two other statutes belong on the same page. Net quantity declarations on prepackaged goods fall under the Legal Metrology Act 9 of 2014, administered by the NRCS, with SANS 289:2022 incorporated under it by Notice 877 in Government Gazette 41854 of 24 August 2018, as amended, setting permitted units, minimum digit heights, placement and prominence, and SANS 1841 covering quantity control of the contents. Short measure prepackages are an offence. For products under a compulsory specification, such as canned fish under VC 8014 or processed meat products under VC 9100, the specification carries its own marking requirements as well.

Draft R3337, published for public comment on 21 April 2023 in Government Gazette 48460 with the comment period closed on 21 September 2023, proposes front of pack warning labels, restrictions on marketing to children and stricter claim rules. It remains a draft, and no commencement or transition date has been gazetted. We track it in a separate article on the draft labelling and advertising regulations. Do not redesign a pack around it yet, and do design your artwork so that a front of pack change would not force a full relayout later.

Which claims create the most risk: natural, no preservatives, sugar free?

The claims that create the most risk are the ones marketing writes and technical never sees. R146 deals with prohibited statements in regulation 13, negative claims in regulation 14, misleading descriptions such as natural, pure and fresh in regulation 47, nutrient content claims in regulation 52 and comparative claims in regulation 53. Section 41 of the Consumer Protection Act then sits over all of them.

Section 41 is wider than most people expect. It prohibits a supplier from expressing or implying a false, misleading or deceptive representation about a material fact, from using exaggeration, innuendo or ambiguity, or from failing to correct an apparent misapprehension on the part of a consumer. Technically true is not the standard. The question is what an ordinary consumer takes from the pack.

Origin, variety, production method and certification claims sit in a different category again, because they move value onto a document rather than onto the food. That makes them a food fraud target as well as a labelling risk. If your pack says single origin, free range, organic or halaal, the certificate behind it is what a fraudster attacks. Mislabelling has its own entry in the standard food fraud typology. Our companion piece on health and nutrition claims goes further into the claim conditions themselves.

Worked example: a recall that started as a label error, and the cost stack

The following is an illustrative model of how one label error becomes a section 61 exposure, not a client case. The figures are stated assumptions used to show how a cost stack builds, and no ASC client is described. It runs through to the numbers a financial director sees, because that is the conversation that gets label review budget approved.

A medium sized manufacturer runs a savoury snack under a retailer own brand. The flavour house reformulates a seasoning to replace a discontinued carrier. The new carrier contains a milk derived component. The supplier issues a revised specification. Procurement files it. The change never reaches the artwork controller, because the recipe code did not change and the change control procedure only triggers a label check on a recipe code change. Six production runs go out over eleven weeks on the old sleeve, which declares no milk.

A consumer with a cow’s milk allergy reacts and is treated at a hospital. The retailer is contacted. Within a day the manufacturer is asked for the allergen assessment, the supplier specification, the artwork approval record and the batch list. The scope of the withdrawal is set by what those records can prove: because the artwork controller cannot show which batches ran on which sleeve version, all six runs are recalled rather than the two actually affected.

Now run the counterfactual. A change control step that treats a supplier specification revision as an artwork trigger costs nothing but a line in a procedure. A label review at the point of the seasoning change is a defined piece of work quoted as one figure. A batch to artwork version link in the reconciliation record would have cut the recall from six runs to two and taken roughly two thirds off the first line of that table on its own. The cheapest control in the stack is the one that was skipped because the recipe code did not change.

What is the private label and own brand exposure?

Private label sits in the worst position in the chain. The retailer owns the brand, the manufacturer owns the formulation and the declaration, and the supply agreement usually pushes technical liability onto the manufacturer while keeping the last word with the retailer. Section 61 exposes both, jointly and severally, and section 24(3) restrains a retailer from supplying goods it knows or suspects carry a misleading trade description.

Three failure modes recur. The first is the retailer artwork template applied to a product it does not fit, so the mandatory particulars are formatted for a different category. The second is the manufacturer assuming the retailer’s technologist checked compliance, while the retailer’s technologist assumed the manufacturer did, because the artwork approval form asks for a signature and not for a compliance statement. The third is a formulation or supplier change made by the manufacturer that never reaches the retailer’s artwork system at all, which is the mechanism in the worked example above.

Manufacturers producing for more than one retailer carry the same product on several artwork templates at once, and the number of live artwork versions is usually higher than the technical manager thinks. Count them before your next audit. If the count surprises you, the control gap is in change management rather than in labelling knowledge, and the Supplier and Purchased Material Approval Risk Assessment Template (RA11) at R690 is where the trigger belongs.

What document trail supports a section 61 defence?

A section 61 defence is built from documents that prove what was true, for which batch, at the moment you supplied it. Approved artwork with a version number, the specification behind it, supplier declarations, the allergen assessment, claim substantiation, the nutrition table source data, print proofs, label reconciliation per run and a retrieval route from batch code to artwork version.

• Approved artwork register. Every live artwork with a version number, an approval date, a named approver and the specification revision it was built from. Superseded versions retained, not deleted.
• Ingredient declaration workings. The descending order calculation, the compound ingredient breakdowns, and the supplier specification for each input, with its own revision number and date.
• Allergen assessment. The cross contact register that justifies any precautionary statement, or justifies its absence, with the assessment date and the trigger for its last review.
• Claim substantiation file. One entry per claim on the pack: the claim as printed, the regulation it is made under, the evidence, and the date the evidence was generated. Analytical certificates attached.
• Nutrition data source. Whether analysed or calculated, with the laboratory report or the calculation and the database used, and the formulation revision it applies to.
• Print proof approvals. Signed proofs from the printer, showing the version that was actually printed rather than the version that was approved in artwork.
• Label reconciliation per production run. Labels issued, applied, damaged, destroyed and returned, recorded against the batch code, with the artwork version noted.
• Change control records. Showing that supplier, formulation, process and packaging changes were assessed for label impact, including the ones where the answer was no impact.
• Retention aligned to the claim window. Section 61 describes a three year period for bringing a claim. Retention periods set on shelf life alone will destroy your defence before the window closes.

These are the same records an auditor asks for and the same records a claimant’s attorney will request. That overlap is useful: the file you build for certification is most of the file you would need for a defence, provided it is retrievable by batch. Our guide to the food safety records every South African food business must keep sets out the wider record set.

What does an ASC label review actually check?

A label review reads the artwork against the law rather than against a checklist of good practice. Mandatory particulars under regulation 9 of R146, country of origin under regulation 10, batch identification under regulation 11, date marking under regulation 12, the allergen declaration under regulation 43, the nutrition table under regulation 50, claim wording, and net quantity under the Legal Metrology Act 9 of 2014.

What comes back is a marked-up artwork with three categories: what must change to be compliant, what should change because it creates a section 41 or section 61 exposure even though it is technically permitted, and what is optional. Each item carries the provision it comes from, so your artwork controller can take it straight to the design agency and your technical manager can file it as the substantiation record.

ASC Food Safety Consultants is SAATCA registered, a FoodBev SETA Accredited Provider, number 587/00337/1900, and B-BBEE Level 1 with 135% procurement recognition, rated 4.9 out of 5 from 350+ Google reviews. The labelling and regulatory work is done by consultants who read the gazette, not by generalists working from a summary. Standard reviews take five to seven business days and an express option turns around in 48 hours when your print slot is booked.

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Published by ASC Food Safety, South African food safety and quality consultants. This article is general guidance and not a substitute for certification-specific advice.