Theatre of the absurd as Food Safety Authority dragged to court over threat to seize meatless products

The Consumer Goods Council of South Africa has lodged an urgent application in the Johannesburg High Court to stop the Department of Land Reform, Agriculture and Rural Development’s Food Safety Authority (FSA) from seizing meat substitute products from Monday, 22 August. 

In a terse letter to producers and retailers, the FSA said it will seize any “meat analogue” products on sale which are using the product names “prescribed for processed meat products in terms of section 8 of the Agricultural Product Standards Act 119 of 1990 (the Act) at all points of sale, i.e. facilities, premises (retail and wholesale), conveyances, etc”. 

In the department’s interpretation of Reg 1283, plant-based “meats”, “salamis” and other sausages, “meatless meat”, “nuggets”, “mushroom biltong” and even veggie burgers are not permitted. 

Absurd

According to this unfathomable logic, even fruit and soya mince, peanut butter, coconut milk and vegetarian burgers will have to be relabelled. This thinking goes against even dictionary definitions of what a burger is: Collins defines a burger as a “flat, round mass of minced meat or vegetables, which is fried and often eaten in a bread roll”. Oxford says it’s either “beef cut into small pieces… OR “fish, vegetables, nuts…”. Cambridge defines it as “meat or other food”. And Lexico says it’s a “dish consisting of a flat, round cake of minced beef, or sometimes another savoury ingredient”.

Earlier this year, the department issued two communiques in which it claimed product names for sausages, strips, burgers, meatballs and other non-meat foodstuffs are illicit. It warned these must be withdrawn from sale immediately or face destruction.

On 22 June, the department instructed the FSA 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 6 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 veggie biltong, mushroom biltong, plant-based meatballs, vegan nuggets and BBQ ribs, plant-based bratwurst, chorizo and red pepper vegetarian sausages, and plant-based chicken-style strips.

On 24 June, during a heated online meeting between sector representatives and the department, the latter initially threatened an immediate ban. 

To avert seizures, producers and distributors were instructed to relabel goods – many of which have a short and sensitive shelf life – at significant cost, or face the destruction of their goods and other sanctions.

Billy Makhafola, the director of food safety and quality assurance in the department, told the sector nothing in the communiques was new, since they were already contained in the regulations and the act. “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. 

“There are names that actually can be used and those names are exclusively prescribed for processed meat products.” 

Donovan Will of ProVeg SA had asked for clarity on labelling, saying there is no evidence to show consumer confusion. 

“In fact, evidence from Australia, Europe and the US proves they are not confused. 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.”

One importer said he had brought in more than $1-million worth of stock, which was cleared by customs and reviewed by the Health Department. “We went through all the channels and the NRCS [National Regulator for Compulsory Specifications] 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?” 

Making a mockery of meat? 

Reg 1283, introduced in 2019, defines “meat analogue” (also known as meat substitute, mock meat, faux meat or imitation meat) as products that:

“(a) approximates the aesthetic qualities (primary texture, flavour and appearance) and/or chemical characteristics of specific type of meat; and (b) are made from non-meat ingredients, sometimes without dairy products and are available indifferent forms (coarse ground-meat analogues, emulsified meat analogues and loose fill, etc.)”

Section 2(2), concerning the scope of the regulations, specifically excludes:

canned meat products as defined in the compulsory specification for the manufacture, production, processing and treatment of canned meat products published under the National Regulator for Compulsory Specifications Act, 2008 (ActNo. 5 of 2008); 

Raw (fresh) processed meat products; and

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).

The sector believes the department’s interpretation is not only flawed, but says any seizures will cause significant losses, cripple businesses and deprive consumers of choice. 

Not lying down

Now, the threat to seize products has escalated the standoff, with producers, distributors and industry bodies threatening legal action. 

This week, Neil Taylor from Infinite Foods, the distributor of Beyond Meat in Africa, said they are left with no choice but to fight. “The thing is, they [FSA] won’t be seizing from me, the distributor, they’ll be seizing it from retailers that I sell to. I don’t think the FSA is going to be showing up everywhere – they are likely to restrict themselves to the big companies. 

“Our products have been doing very well in South Africa. When we started the business, almost four years ago, people said, oh, you’re crazy, South Africans love their meat, and we’re like, no, but these products are great and people are going to want them. There is definitely a market for these products here and people want them.”

Taylor, a retired lawyer, said he asked the department to provide evidence of customer confusion, but it had none. “So I’m like, okay, then why are we doing this? What is the actual point of this if customers aren’t confused? When we first started selling the Beyond Burger, a retailer had it on the shelf for R129 for two burgers. Customers were not confused – they knew exactly why they were paying that for two burgers. Our labels are very clear: They say ‘Beyond Meat plant-based patties’.” 

Prices have come down – possibly uncomfortably close to the price of beef and other meats – and Taylor says his small business is suffering due to the uncertainty. 

“When we started at the end of 2018, six restaurants were selling our burgers. Over time, we’ve managed to get listed at Woolworths. Now, we’ve got 1,000 points of sale that we’ve built, and we employ a lot of people, both directly and indirectly, through supply chain services that we use. We  survived Covid. I can’t figure out what they’re trying to accomplish.”

Taylor said the last products that he imported arrived in June. “I’ve been out of stock on burgers for a month and a half because investing in a container full of burgers, not knowing if it’s going to be able to be sold once it gets here, is a risk I can’t take. 

“It’s already had a big impact on us and on our retailers. There doesn’t need to be a massive seizure of product. They have already damaged us. They’ve already made it difficult for people to get their hands on the product. And we were hoping that we’d be able to engage them in a conversation, fix the issue and move on.”

Pioneer of the plant-based category in South Africa, Fry Family Food, through the LIVEKINDLY Collective, issued a statement, saying its products are not currently at risk.

“Despite the letter from FSA, Fry’s products are NOT at risk of being seized as we have taken the necessary legal steps to prevent this.”

Fry’s said it had lodged a formal objection, as set out in the Agricultural Products Standards Act, which means the department now must convene a tribunal to evaluate its objection. Therefore, “no legal action, including product seizures, can be taken against Fry’s or LIVEKINDLY Collective Africa in terms of FSA’s direction until that process has been completed”.

“It is therefore business as usual for all our brands, products and customers until our objection has been finalised. To ensure this is the case, today we will also send a formal reminder to the assignee [FSA] that any action against our products would be premature and unlawful.”

Legislative gap

The Consumer Goods Council of South Africa told Business Maverick that currently, “meat analogues are not covered by legislation and are also excluded from the scope of the processed meat regulations”.

“The legislative gap in the regulation of meat analogue produce means that the analogue [sector] is operating in an environment that is not regulated, and has in the process grown a significant customer base for these products. 

“It is, however, important for the department to expedite the regulation formulation, without applying punitive measures on the plant-based sector. The [council] has reached out to the department to resolve the matter and minimise the impact of the directive on affected members. We have also requested the department to fast-track the formulation of appropriate legislation for meat analogue products.”

The council said it was assisting affected members on a case-by-case basis while discussions with the department are under way, adding that 85% of the sector agree that the formulation of appropriate legislation for meat analogue products must be fast-tracked because it does not currently exist. 

Hahn & Hahn attorney Janusz Luterek, who is not involved in the council’s legal action, has previously called the department’s threats akin to a bull in a china shop. He said if challenged legally, the FSA and the department will have great difficulty explaining why they decided not to issue a directive to give producers and retailers time to correct issues they identified, because not all products use the same names: “In my view, some are clearly right, some are clearly wrong, and then there’s a whole grey area. So it’s very difficult to issue a generic letter saying we’re coming to seize products.”

Landré Thomas, a regulatory and compliance consultant, said many suppliers and clients are extremely livid at this stage since no “vegan meat alternative” wording can be used or provided. 

“I believe that the stakeholders could work together to find common ground, like in the instance of dairy-free cheese and ice creams. It is unfortunate that it needs/might get to the stages of legal action. 

“Packaging is printed in large bulk to bring down costs to consumers. Many suppliers cannot carry the cost of just writing off packaging.”

Luterek warns that the assignee, the FSA’s representatives, would also need to obtain warrants to seize the products from each individual store. “In almost all instances, you need a warrant issued by the court to do a seizure. You can’t simply arrive and a low-level assignee employee decides to seize products. You actually need… the authority of a warrant issued by a judge of the high court or by a magistrate who has jurisdiction in the area where a place of business is situated. It can’t be a generic countrywide warrant.”

Should FSA staff seize products illegally, it could face civil and criminal liability, he adds. BM/DM