Picture the confusion of peanut butter enthusiasts as they strolled into their local grocery store only to discover that their beloved peanut butter brand had been pulled from the shelves. What may just be a disgruntled customer at that moment is the evidence of a bigger matter in terms of the Consumer Protection Act 68 of 2008 (“CPA”). Well, let’s not focus on the “crunchy” and “sticky” issue of the recent recall of Clover’s Go Nuts Peanut Butter, but rather on the role that the CPA and the National Consumer Commission (“Commission”) plays in the recall of products in South Africa now and then to protect customers in South Africa. 

A product recall is a process whereby consumers or wholesalers of a specific product are requested to return the product after the manufacturer has identified a fault or defect. In South Africa, product recall is predominantly governed by the CPA. The preamble of the CPA indicates that legislation must be enacted to, among other things, protect consumers from hazards to ensure their well-being and safety. The Commission is the regulatory board for consumer-related matters in South Africa, which was established in terms of section 85 of the CPA to amongst other protect consumers’ interests and ensure accessible, transparent and efficient redress for consumers.

A recall is implemented by the Commission or the supplier to stop the distribution of a defective or unsafe product as well as informing the relevant authorities and the public of the problem. Ultimately, the goal of a recall is to retrieve many, if not all, of the unsafe products from the consumers and to prevent any further distribution of the product in the marketplace. The CPA distinguishes between two types of product recalls, being mandatory and voluntary.  

i. Mandatory recalls determined by section 60(2)(b) of the CPA, requiring the Commission to recall goods, where the Commission has reasonable grounds to believe that any goods may be unsafe, or that there is a potential risk to the public from its continued use of or exposure to the goods, and where the producer or importer has not taken the necessary legislative steps required. In such a case, the Commission may carry out a recall on any terms required by it in the CPA. 

ii. Voluntary recalls are executed by the suppliers when it has come to their attention that a specific product produced by it may cause harm to consumers. The Consumer Product Safety Recall Guidelines (“Guidelines”) were published in 2012 wherein the Commission elaborates, for the benefit of all interested parties, on voluntary product recall. All suppliers are obligated to notify the Commission when undertaking a voluntary recall.

The question that often arises is whether a product falls under the definition of goods under the CPA. The definition of goods in terms of section 1 of the CPA is quite broad, which benefits the consumer. “goods” can briefly be described as: 

i. Anything marketed for human consumption.
ii. Any tangible object not falling under the previous category which includes any medium in which anything is or may be written or encoded.
iii. Any literature, music, photograph, motion picture, game, information, data, software, code or other intangible product written or coded on any medium, or a licence to use any such intangible product.
iv. A legal interest in land or any other immovable property, other than an interest that falls within the definition of 'service' in this section.
v. Gas, water and electricity.

So, almost any product on the market may be subject to a recall if so, required in terms of the CPA. The recent national peanut butter recall that took place in South Africa, was another wake-up call for all suppliers to ensure that their products are continuously meeting the statutory requirements and standards as determined in the CPA and it reminds consumers that they are indeed being actively protected in practical ways by the provisions of the CPA. 

Suppliers are further reminded that there are various other aspects which go into ensuring that unsafe, defective or hazardous products are removed from the hands of consumers when found to be such. This mirrors the consumer-centric approach of the CPA and other related legislation protecting South African consumers. Given the economically vulnerable state of most South Africans, we can rest assured that our safety is the Commission’s number one priority in cases where products are believed to put us at risk. 

The CPA creates various offences in section 111 of the CPA for suppliers who fail to adhere to the legislative protocol surrounding product recalls which suppliers must also keep themselves accountable for their responsibilities detailed in the CPA. Failure to adhere to the CPA may result in a fine or to imprisonment, or both a fine and imprisonment, so why take the chance? Suppliers must avoid having their bread “peanut” buttered on both sides, by intentionally or unintentionally failing to comply with the CPA provisions, and customers can rest assured that there are indeed practical ways in which the CPA and Commission aim to get customers out of any unwanted “sticky” situation. For any CPA-related queries, feel free to contact our professionals to assist you. 


Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy has been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s).