PACKAGING: Watch Your Language
Recent Western Cape Business News
LOCAL manufacturers will soon have to change the way they label their products, particularly when labels carry warnings and instructions to consumers. To pass muster under the new Consumer Protection Act, manufacturers will have to watch their language and make it loud and clear if using the product carries any conceivable risks.
“Not only must ‘plain language’ be the order of the day but manufacturers will have to be extremely careful about how they describe the attributes, uses and benefits of their products,” says Eric Levenstein, director at Werksmans Incorporating Jan S. de Villiers. “The act makes it clear that manufacturers carry the burden of ensuring that consumers understand what they are taking on when purchasing a product.”
Commenting on the ‘plain language’ requirements of the Consumer Protection Act, Levenstein says the language used on labels and product notices should be accessible to an ordinary consumer. “This means someone with average literacy skills and minimal experience should be able to understand the message without undue effort.” The National Consumer Commission is expected to shed more light on this by publishing guidelines on how to assess whether the language on labels is plain enough.
The Act also makes it very difficult for manufacturers or suppliers to limit their liability for product-related risks. “The manufacturer is expected to set out very clearly any activity or facility that is subject to any risk of an unusual character or nature,” Levenstein says. “Again, this must be seen through the eyes of the ordinary consumer. The test is whether an ordinarily alert consumer could reasonably be expected to be aware of a risk or the circumstances that could result in serious injury or death.”
Where consumers cannot be expected to know about a risk, it is not enough for manufacturers just to draw their attention clearly to that risk. ”The consumer must also acknowledge awareness of the risk, such as by signing or initialling the notice about the risk,” says Levenstein.
Complying with this provision is likely to be a challenge for manufacturers, he says. “If it were ever raised in a court of law, the supplier for example of pharmaceutical products might, on some basis, have to prove that when buying the product, the consumer concerned knew specifically of the manner in which he or she had accepted the assumption of risk when using the product.”
He adds that all these issues will be tested in the courts in due course, probably focusing on whether or not the manufacturer could have foreseen or anticipated risks when designing products and providing warnings and instructions to consumers.
“Once the Act is implemented, risk assessment on the part of manufacturers in South Africa will become critical,” Levenstein says. “Risk assessment offers an opportunity to identify hazards associated with intended uses and possible abuse, and to take steps to eliminate or control them before an injury occurs. This process can be a key factor in successfully reducing risk to an acceptable level by manufacturers.”
The way manufacturers screen their products for potential hazards will also no doubt be tested in due course by the courts. ‘In the future, manufacturers will possibly have to prove to a court that they employed scientific processes and did so with experienced people, to anticipate reasonably foreseeable uses and misuses of products and to ensure that they did implement appropriate risk reduction measures when drafting the relevant warning labels on their products.”
Levenstein says that ultimately the manufacturing of products in South Africa might become more expensive considering the potential liability on the part of manufacturers. “Insurance costs and the costs of researching and preparing product labels might very well push up the costs of the product. What is hoped is that the introduction of the Act does not result in a situation where increased product prices find their way onto the doorstep of the consumers whom ultimately the Act attempts to protect.”
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