1.1 Print Media SA ("PMSA") thanks the Parliamentary Portfolio Committee on Health ("the Committee") for giving it the opportunity to lodge its written representations on the proposed Foodstuffs, Cosmetics and Disinfectants Amendment Bill [B35-2005] ("Foodstuffs Amendment Bill").

1.2 PMSA would like to specially thank the Committee for giving it an extension until Thursday, 9 March 2006 within which to deliver this written submission and further confirms that it would like to be given an opportunity to make oral submissions to the Committee on the Foodstuffs Amendment Bill.

2 Print Media SA

2.1 PMSA is an association not for gain which has been incorporated as a company in terms of section 21 of the Companies Act 61 of 1973. PMSA was formed to represent the interests of a broad range of media publications, including daily, weekly and community newspapers and consumer, trade, technical, professional and other specialist magazines. As such, PMSA is representative of almost all of the participants in the print media industry.

2.2 In making this submission to the Committee, it is the intention of PMSA to focus only on those aspects of the Foodstuffs Amendment Bill which, PMSA believes may have a detrimental impact on the right to freedom of expression protected by section 161 of the Constitution of the Republic of South Africa Act 108 of 1996 ("the Constitution").

3 Definition of Appliance

3.1 The first concern pertains to the definition of "appliance" in section 1 of the Foodstuffs Amendment Bill which proposes to amend the existing definition to include activities such as the display and sale of foodstuffs, cosmetics and disinfectants.

'appliance' means the whole or any part of any implement, machine, instrument, apparatus, equipment, robot. or other object used or capable of being used for, in or in connection with the manufacture, treatment, packing, labelling, storage, conveyance, preparation, display, sale. serving or administering of any foodstuff, cosmetic or disinfectant;

1 Section 16(1) of the Constitution provides:- "Everyone has the right to freedom of expression, which includes - (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas".

3.3 The existing definition of an "appliance" is a wide one and will with the proposed amendments be expanded to include the ability on the part of the Minister of Health ("Minister") to control and regulate any object used for the display and sale of foodstuffs, cosmetics or disinfectants. Objects used for the sale of foodstuffs could conceivably include store shelves, display cabinets, vending machines, shop windows and possibly even shop premises. Similarly, objects used or capable of being used for the sale of foodstuffs, cosmetics or disinfectants could potentially encompass, inter alia, point of sale material, brochures, print advertisements and broadcast advertisements.

3.4 If one has regard to the provisions of section 15 of the Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972 ("Foodstuffs Act") which empower the Minister to make regulations and in particular to the provisions of section 15( 1 )(b )(i)2 which authorises the Minister to prescribe, prohibit, restrict or otherwise regulate the use of any appliance, the Minister will now be able to regulate the manner in which foodstuffs, cosmetics and disinfectants are displayed and sold (including advertisements and other media used in the promotion of the sale of foodstuffs).

3.5 Of further concern to PMSA is that if one has regard to the amended definition of an "appliance" when read with section 15(1)(b)(i) of the Foodstuffs Act in the context of the provisions of section 4(c) of that Ace, it will be an offence to sell or import any foodstuff, cosmetic or disinfectant where a prohibited appliance has been used or displayed. As such, any person who uses advertising, marketing or promotional material (as per the amended definition of an appliance) in contravention of a regulation restricting or prohibiting such material made by the Minister under section 15(1)(b)(i) of the Foodstuffs Act, will be guilty of an offence.

3.6 The proposed amendments to the definition of an "appliance" when read with sections 15(1)(b)(i) and 4(c) of the Foodstuffs Act constitute a potential violation of the right to freedom of expression as contained in section 16 of the Constitution.

4 Proposed Amendments to Section 15 of the Foodstuffs Act

4.1 The proposed amendments to section 15 in the Foodstuffs Amendment Bill will enable the Minister to further regulate the manner in which foodstuffs, cosmetics and disinfectants are sold or displayed. PMSA is particularly concerned that the following proposed new sub-sections to section 15 will be used to restrict certain advertising, marketing and promotional activities associated with the display or sale of foodstuffs, cosmetics or disinfectants, namely

4.1.1 Section 15 (nA) which provides

'The Minister may make regulations regarding the control, restriction or prohibition of the use of any premises that are connected with the handling, processing, production, manufacturing, packing, storing, preparing, conveyance, displaying, sale or serving of any foodstuff. "

2 Section 15 (1 )(b )(i) provides - "The Minister may make regulations prescribing, prohibiting, restricting or otherwise regulating the use or employment of any substance or any appliance, container or any other

object or any process or method for, in or in connection with the manufacture, treatment, packing, labelling, storage, conveyance, serving or administering of any foodstuff, cosmetic or disinfectant. "

3 Section 4(c) provides that - "Subject to the provisions of section 6, any person shall be guilty of an offence if he sells or imports for sale any foodstuff, cosmetic or disinfectant in or in connection with the manufacture, treatment, packing, labeling, storage or conveyance of which a prohibited process or method or a prohibited appliance or container or any other prohibited object has been employed or used. "

4.1.2 Section 15 (nL) which provides

"The Minister may make regulations pertaining to the requirements relating _ to the issue of an order that prohibits the sale or keeping of foodstuffs. "

4.2 The provisions of section 15 (nA) and 15 (nL) are sufficiently wide to be capable of being interpreted to include the right to restrict or prohibit the advertising, marketing or display of promotional material in respect of foodstuffs on certain premises and generally, the prohibition of such activities in relation to prohibited foodstuffs. Once again, these provisions raise concerns that the right to freedom of expression is violated and this issue is discussed in greater detail in paragraph 5 bellow.

5 Freedom of Expression

5.1 Any attempt to empower the Minister to regulate, prohibit and restrict the manner in which certain foodstuffs, cosmetics or disinfectants are advertised, promoted or marketed (as per the wide definition of the proposed amendment to the definition of an "appliance'1 will constitute a violation of the right to freedom of commercial expression, which is expression protected under the constitutional right to freedom of expression and which has been recognised by our courts as a form of expression deserving of protection.

5.2 In North Central Local Council and South Central Local Council v Roundabout Outdoor (Ply) Lid and Others 2002 (2) SA 625 (D), the Court at page 634 had the following to say on the right to freedom of commercial speech:

"The right to freedom of expression in section 16 of the Bill of Rights in the Constitution has been interpreted to include speech represented in the form of advertising. Advertising is therefore a form of commercial speech which is an entrenched right in terms of the Constitution." [Our emphasis]

5.3 In City of Cape Town v AD Outpost (Ply) Lid and Others 2000 (2) SA 733 (C), Judge Davis confirmed that commercial speech was deserving of protection under the Constitution and referred with approval to international jurisprudence on this issue by quoting from the following cases at pages 748 -749:

"In Central Hudson Gas and Electric Corp v Public Service Commission

of New York 447 US 557 (1970) at 561 Powell J said:

'The Commission's order restricts only commercial speech, that is expression related solely to the economic interests 01 the speaker and its audience The First Amendment protects commercial

speech from unwarranted governmental regulations...... Commercial expression not only serves the economic interests of the speaker but also assist consumers and furthers the societal interest in. . .. .. possible dissemination of information. '

Similarly, the Canadian Supreme Court in R J R- McDonald Inc v Attorney General, Canada (1996) 31 CRR 89 (SC) at 261 held:

'This Court, has on a number of occasions, held that prohibitions against enqaqinq in commercial expression by advertising infringed upon the freedom of expression in s2 (b) of the Charter. " [Our emphasis]

5.3.1 As such, any attempt to regulate advertising, marketing and promotional material in respect of foodstuffs, cosmetics and disinfectants will constitute an infringement of the right to commercial freedom of speech and unless the definition of an "appliance" and sections 15 (nA) and 15 (nL) are amended to specifically exclude such activities, the Foodstuffs Amendment Bill may be open to constitutional challenge and scrutiny.

6 Conclusion

6.1 On a review of the various amendments to be effected to the Foodstuffs Act, it appears to PMSA that the actual intention behind such amendments is to regulate and eliminate practices pertaining to the handling, importation and exportation of foodstuffs which are potentially hazardous from the perspective of infection or disease.

6.2 This being the case, those provisions in the Foodstuffs Amendment Bill which could be interpreted to extend to advertising and marketing activities should be curtailed in order to give proper and meaningful effect to the actual intention behind the amendments and in order to ensure that there is no inadvertent 'chilling effect' on the free circulation of ideas.4

6.3 PMSA once again thanks the Committee for the opportunity to make written representations on the Foodstuffs Amendment Bill and looks forward to making oral representations to the Committee in due course.

Yours faithfully,

EUGENE SALDANHA

GENERAL MANAGER

PRINT MEDIA SA