A GMO, as defined by the Act, is an organism where the genes or genetic material has been changed in a way that does not occur naturally through the usual reproductive process.
"While the Act includes provisions relating to the genetic modification of organisms, from the development and production to the release and application of GMOs, as well as the use of gene therapy, it does not govern the labelling of products that contain GMOs, or stipulate the need to disclose this information to the consumer," says Natasha Wright, an associate, at law firm Adams & Adams.
So it's quite likely that we'll have been consuming food containing GMOs without even knowing it.
While the use of GMOs in food is the subject of an entirely different debate, the legislature has decided that the consumer has a right to know what it contains.
"The onus is now on the producer to adhere to stringent labelling requirements that must be displayed on foodstuffs. Furthermore, the consumer has a right to know whether the product is not all natural," says Wright.
In April this year, the long-awaited Consumer Protection Act (the CPA) came into force. Part of the Act states that its purpose is to promote and advance the social and economic welfare of consumers by establishing a legal framework that is accessible, sustainable and responsible for the benefit of consumers, protecting them from improper trade practices which may be deceptive or misleading. The Act also seeks to improve consumer awareness and information, encouraging responsible and informed behaviours.
Against this background, the CPA has introduced provisions relating to product labelling and information displayed on product packaging.
"It's necessary to know what the CPA defines as a trade description," says Wright. "This is the information displayed on the packaging of goods and provides the consumer with the information needed to decide whether or not to purchase. According to the CPA, a trade description is any description as to the number, quantity, measure, weight, ingredients, and the name of the producer, the mode of manufacture and the place or origin of the goods. It can be applied directly to the goods, or displayed with the goods or may be contained in any advert, sign, catalogue or brochure. It deals strictly with the application of trade descriptions to goods that are intended to mislead the consumer. In terms of this section a marketer must not knowingly apply to any goods a trade description that's likely to mislead the consumer."
Wright explains that a retailer of goods may also not offer to supply, display or supply any particular goods if there is any doubt that a trade description applied to goods is likely to mislead the consumer. The legislature has included, in keeping with the spirit and purport of the CPA, provisions in the CPA that deal with the disclosure to the public of the presence of GMOs in goods.
The CPA states that any person who produces, supplies, imports or packages any prescribed goods must display on, or in association with the packaging of those goods, a notice in the prescribed manner and form that discloses the presence of any genetically modified ingredients or components of those goods in accordance with applicable regulations.
Furthermore, the Act covers the labelling of products that contain GMOs. In terms of the Regulations, all goods that contain at least 5% of GMOs, irrespective of their origin must be clearly displayed in a legible manner and size that they contain GMOs.
It's also prohibited to state on packaging that a product does not contain GMOs unless the goods contain less than 1% GMOs. It is, however, permissible to state that the product contains less than 5% GMOs. The CPA even goes as far as to state that, if it is scientifically impractical to test goods for the presence of GMOs, a notice must be applied to the goods in a conspicuous and easily legible manner and size stating "May contain genetically modified ingredients".
In essence, each party in the supply chain has the responsibility to ensure that the goods that they take ownership of hands bear the relevant notices pertaining to GMOs should the product contain more than 5% GMOs.
The Act also states that any notice that is required in terms of the CPA must be displayed in plain language. "Meaning that it should be written in such a way that an ordinary consumer with average literacy skills and minimal experience as a consumer understand the content and significance," says Wright.
