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Date of Durability on Foodstuffs and the Consumer Protection Act

The Consumer Protection Act provides, amongst others, for a warranty of quality and durability, the right to safe, good quality goods, warnings concerning the fact and nature of risks associated with goods, safety monitoring and recall of products, and liability for damage caused by goods.  As stated in “Impact of the Consumer Protection Act on the Food Industry” which I had published previously, it seems likely that the liability for damage caused by goods will have the most far reaching effects on the food industry.  This risk is closely linked to the date of durability marked on the food product

R146 under Act 54 of 1972

The Foodstuffs Act, and in particular R146 provides for the application of a date of durability to food products and in particular:

“‘date of minimum durability” ("Best Before" or "Best Before End") means the date which signifies the end of the period under any stated storage conditions during which the product will remain fully marketable and will retain any specific qualities for which tacit or express claims have been made, However, beyond the date the food may still be perfectly satisfactory;”

 

"‘sell by’ or ‘display until’ means the last date of offer for sale to the consumer after which there remains a reasonable storage period at home;”

 

"‘Use by’ (Best Consumed Before, Recommended Last Consumption Date, Expiry Date) means the date which signifies the end of the estimated period under the stated storage conditions, after which the product probably will not have the quality attributes normally expected by the consumers and after which date the food should not be regarded as marketable;”

It will be noted that none of these definitions state that after such a date, whether Best Before, Sell By, or Use By, the food is unsafe to consume.  In fact R146 seems to focus on marketability and quality rather than food safety in respect of these durability definitions.

Liability to a Consumer

Section 61 of the Act, which provides for so called “no fault” liability of the importer, manufacturer, wholesaler, and retailer of unsafe, defective, failed or hazardous goods, or where inadequate instructions or warnings have been provided.

Thus, where a consumer purchases a foodstuff marked with a Best Before date and then consumes it after the Best Before date and falls ill, the Best Before date would not be a defence for the retailer or the distributor as the definition of Best Before indicates to a consumer that the foodstuff could still be “perfectly satisfactory” but may be of reduced quality e.g. colour, taste, smell for quite some time and there is no cut off for this period and thus the use of Best Before, although it extends saleability, may leave the supplier exposed to liability under the Consumer Protection Act.

Even the use of Sell By date labelling falls to the same considerations as the Best Before labelling, although to a lesser extent and a consumer would be expected to consume the product within a few days of the Sell By date, although again the exact period is not defined.

The lowest risk labelling in terms of durability versus liability is Use By labelling as this clearly indicates to a consumer that the product should be consumed by a certain date although R146 does not make this a requirement for the use of the Use By labelling and this may cause some difficulties to a company trying to rely on this as a defence.

Thus, in my view, if a supplier wishes to limit his risks of liability for foodstuffs beyond their safe durability period, then there should be another indication on the packaging such as “Do not consume after the Use By date” or the like.  Clumsy, but relatively safe, and only area where a Use By date has been used in the first place.

Off-course all of this presupposes that suppliers know the safe durability period of the foodstuffs they sell and that the date of durability is applied after scientific testing and not, as some have been known to do, through empirical evidence or by guesswork!

Consequences

The sword of the Consumer Tribunal will hang over the heads of repeat, intentional, or grossly negligent transgressors where a fine of up to 10 % of turnover of a company may be levied.  In terms of other provisions there are criminal sanctions against individuals which carry prison terms of up to 10 years.

The Act also puts in place a product recall regime in terms of which product recalls may be ordered by the National Consumer Commission for example where foodstuffs have caused illness or other harm.

Suppliers are reminded that liability for harm or injury caused by goods introduced under the Act is vastly different from the position prior to the coming into effect of Act in that under the Act the supplier need not have been negligent nor breached an explicit or implied contractual term in order to be liable.  Thus the Act imposes a no fault liability on any producer or importer, distributor or retailer of any goods for damage caused wholly or partly as a consequence of supplying any unsafe goods, a product failure, defect or hazard in any goods, or inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from or associated with the use of any goods, irrespective whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer, as the case may be.  The date of durability as discussed above should be viewed as “instructions or warnings” in terms of the above.

The only defences open to a person in the supply chain alleged to be liable for harm caused to a consumer will be that:

(a) the unsafe product characteristic, failure, defect or hazard that results in harm is wholly attributable to compliance with any public regulation;

(b) the alleged unsafe product characteristic, failure, defect or hazard—

(i) did not exist in the goods at the time it was supplied by that person to another person alleged to be liable; or

(ii) was wholly attributable to compliance by that person with instructions provided by the person who supplied the goods to that person, in which case, subparagraph (i) does not apply;

(c) it is unreasonable to expect the distributor or retailer to have discovered the unsafe product characteristic, failure, defect or hazard, having regard to that person’s role in marketing the goods to consumers; or

(d) the claim for damages has prescribed in terms of Section 61(5).

 

A further element of liability which is introduced by the Act is that of no fault vicarious liability in terms of which if an employee or agent of a person is liable in terms of this Act for anything done or omitted in the course of that person’s employment or activities on behalf of their principal, the employer or principal is jointly and severally liable with that person.

Thus, it would not be a defence for a retailer to claim that the Merchandiser or their supplier had not removed “expired” stock from the shelf or that the consumer should have seen the Best Before or Sell By date, unless this is accompanied by a suitable warning of the danger of consuming the product after expiry of said date.

Warranty and Right to Return Goods

Besides the issue of claims for damages as a result of harm caused by foodstuffs, every consumer has a right to receive goods that are reasonably suitable for the purposes for which they are generally intended for, are of good quality, and will be useable for a reasonable period of time taking into account the Best Before, Sell By or Use By date.

It is irrelevant whether a product failure or defect was latent or patent, or whether it could have been detected by a consumer before taking delivery of the goods unless the consumer has been expressly informed that particular goods were offered in a specific condition, and has expressly agreed to accept the goods in that condition.

Thus, in the context of food products, the consumer is entitled to food products which have the product characteristic as indicated on the packaging and in marketing, which will have a reasonable shelf life depending on the type of product, for example, fresh pasteurised, UHT, and the like and the producer or importer, the distributor and the retailer each warrant that the goods comply with the requirements and standards contemplated above and the retailer, for example, cannot merely refer the consumer back to its supplier when a situation arises.

Within six months after the delivery of any goods to a consumer, but before the Sell By or Use By date in the case of foodstuffs, the consumer may return the goods to the retailer or supplier, without penalty and at the supplier’s risk and expense, if the goods fail to satisfy the abovementioned requirements and standards, and the supplier must either replace the failed, unsafe or defective goods, or refund to the consumer the price paid by the consumer for the goods, at the direction of the consumer.

Thus, it is no longer Caveat Emptor but rather Caveat Vendor!

 

The author, Janusz F Luterek, Pr.Eng is an engineer and an attorney specialising in all aspects of technology law with a specific focus on food law and consumer law.  Janusz may be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it.

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