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In recent years, several food and product recalls have been announced in the media by suppliers, producers and the National Consumer Commission ("the NCC").
Of late, we have noted a number of publications on the NCC's website dealing with certain food and product recalls including the recall of "Top Score Instant Porridge" brand produced in Namibia and supplied to the Spar Group in South Africa due to safety concerns, and the recall of 372 Volvo EX30 vehicles due to a potential issue with the high-voltage (HV) battery.
In light of the increasing frequency of these announcements, it is important for suppliers and producers to take proactive steps to ensure compliance with the legal and regulatory framework governing food and product recalls, to protect their businesses and reputations and, ultimately, maintain consumer confidence.
This article analyses the legal framework of food and product recalls in South Africa and suggests ways in which suppliers or producers of food and other products can ensure that the process of recalling is aligned with the legal framework and to develop better strategies of recalling food and other products.
The legal framework
Food or product recall refers to the process of removing a product from distribution, sale and/or consumption (or even from consumer homes) when such food or product becomes unsafe, defective or violates regulations.
Food and product recalls impact significantly on the operational, financial and reputational impact of a business, including the cost of retrieval, remediation, potential fines and potential disputes with counterparties in the supply chain. They can also trigger insurance and indemnity considerations; and necessitate immediate claim notifications and evidence preservation.
In South Africa, the Consumer Protection Act No. 68 of 2008 ("the CPA") primarily regulates food and product recalls. There are other legislative and regulatory instruments regulating food and product recalls too; however, the focal point of this article is to address food and product recalls through the lens of the CPA.
In terms of section 60(1) of the CPA, the NCC is mandated to develop and adopt a practice providing for effective and efficient systems to receive notice of consumer complaints and the return of any goods because of a failure, defect or hazard. The NCC aims to protect public health and is responsible for enforcing the CPA, which seeks to ensure that products and goods are safe for use and that consumers are informed about any potential risks. Accordingly, the NCC works to protect consumers from dangerous or compromised products by ensuring that such products are recalled, as contemplated in the CPA.
The CPA provides for two categories of recalls, being voluntary and mandatory recalls. Voluntary recall, on the one hand, refers to the process where the supplier of goods voluntarily and proactively recalls certain products, for purposes of limiting or removing the potential risk of harm to consumers as soon as the supplier becomes aware of safety issues. The NCC must be notified in writing within 2 (two) days of the supplier initiating the recall, failing which the supplier may be found guilty of an offence under section 110(2) of the CPA. For a voluntary recall, sometimes what is required is a credible and reasonable suspicion that a particular product has safety issues, warranting a recall to ensure public health and safety.
Mandatory recall, on the other hand, occurs when the NCC intervenes to enforce the removal of dangerous or compromised goods, especially in circumstances where the supplier has failed to do so. This obligation on the NCC stems from section 60(2) of the CPA, as a matter of last resort. When this happens, the NCC may issue a written notice stipulating the manner in which the recall is to occur and the NCC will monitor the recall process. A producer or importer, affected by a mandatory recall, may apply to the National Consumer Tribunal to set aside the mandatory recall in whole or in part, as contemplated in section 60(3) of the CPA.
In terms of paragraph 1.2.2 of the Consumer Product Safety Recall Guidelines published on 13 June 2012 under Government Gazette 35343 ("the Guidelines"), a supplier – in the process of recalling a product – has general responsibilities that include, inter alia, to conduct a comprehensive analysis of the safety hazard; to stop producing and distributing a product that has been identified for recall; and to notify the relevant regulator(s) and the public at large.
Effective ways of addressing food and product recalls
Having regard to already existing methods of dealing with food and product recalls, which include the Guidelines, below we suggest certain further effective ways of addressing this issue and guidance for suppliers to properly prepare for any food or product recall:
- Establish recall protocols aligned with the Guidelines: Paragraph 4 of the Guidelines requires a supplier to submit a recall strategy to the NCC on initiating a recall, thus assuring the NCC that the product safety risk will be effectively mitigated. Recall protocols should be designed to mirror the Guidelines. The recall strategy should, inter alia, explain the problem, quantify the units supplied, outline any injuries or incidents associated with the contaminated or defective product, describe how the supplier will communicate with consumers, and how the supplier will report back to the NCC about the progress. The Guidelines encourage negotiating the recall strategy with the NCC before submission, which helps ensure alignment and smooth execution;
- Use of advanced technology: Through the use of advanced technology, suppliers or retailers would be able to connect their supply chain, for purposes of analysing data and monitoring their products, and can thus be alerted if there is food or product that has been subject to contamination or defect. Technology-enabled alerts and data sharing across suppliers, distributors and retailers reduce lag time and improve accuracy in identifying impacted products;
- Build recall-ready contracts: Incorporate clear recall triggers, responsibilities, timelines, information-sharing obligations and cooperation clauses across suppliers, distributors and customers, to enable swift and coordinated action. The recall-ready contract, being a supply-chain agreement, should expressly define who has the authority to declare a recall, what factual or regulatory triggers require action and how decisions are escalated if parties disagree;
- Implement rigorous claims notification and evidence protocols: Establish immediate notification pathways to the NCC, insurers and counterparties and, adopt disciplined evidence collection to preserve coverage and support recovery or defences. When parties know exactly what evidence must be preserved and shared, trace-back and trace-forward activities accelerate, enabling targeted recalls instead of broad, costly withdrawals. Strong evidence protocols protect insurance coverage and also enable faster, more focused food and product recalls by improving the quality of traceability data;
- Use mediation mechanisms for efficient dispute resolution: Pre-agreed mediation provisions can resolve responsibility and cost allocation disputes faster and at lower cost during high-pressure recall events; and
- Align insurance and supplier indemnities: Ensure product recall, contamination, business interruption and related coverages dovetail with supplier indemnity obligations so that financial risk is clearly allocated and recoverable. Clear allocation of financial risk – supported by the right policies and endorsements – improves recoverability and reduces uncertainty when making time-critical.
Conclusion
In brief, this article has outlined the legal framework governing food and product recalls. Given the growing number of food and product recalls in recent years, we recommend that suppliers, producers and retailers introduce and develop recall strategies that comply with the CPA and the Guidelines, and ensure that these recall strategies are fit for purpose in event of an actual recall, to avoid reputational damage and business loss.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
