Consumer rights and listeria scare

The Consumer Protection Act (CPA) is intended to make it easier for consumers to claim against producers, importers, distributors or retailers, for harm caused by the supply of unsafe goods or product failure including for damages from food poisoning.

Claims for damages, however, are allowed irrespective of whether there was any negligence on the part of the supplier or manufacturer, said Acting Consumer Goods Ombudsman (CGSO), Magauta Mphahlele.

She said this following the recall of various processed meats after the source of the deadly listeria outbreak was identified as coming from polony; smoked Russians and frankfurters; made at a Tiger Brands Enterprise factory in Polokwane. The major stores have already taken steps to remove the products from their shelves.

Rainbow Chicken Limited (RCL) said that it was also recalling its polony brand and has suspended production although tests have not yet been concluded. RCL also produces Rainbow Chicken Viennas, among other popular brands.

Listeria bacteria was found at two Enterprise processed meat factories and one Rainbow Chicken polony factory in the Free State.

The CGSO welcomes the commitment by suppliers to voluntarily comply with the recall by refunding consumers for the products even if they do not have a receipt.

As the return of the identified products is being managed by the National Consumer Commission (NCC), the CGSO does not expect a flood of complaints, although some of the suppliers have reported that they are receiving more calls.

Under Section 61 of the CPA, claims for damages are allowed irrespective of whether there was any negligence on the part of the supplier or manufacturer.

“The harm against which consumers are protected may arise from a product failure, defect or hazard or inadequate instructions or warnings about using the goods. It is sufficient to show that the damages were suffered because of these shortcomings,” said Ms Mphahlele.

“The type of harm for which a consumer can claim damages for include the death or injury to any natural person; an illness of any natural person; any loss of, or physical damage to, any property, irrespective of whether it is movable or immovable; and any economic loss that results from the types of harm listed,” said Ms Mphahlele

“Economic loss means indirect financial losses that might result from loss of income, hospital bills or loss of financial support resulting from the death of a family member, for example. The claim for damages must be brought within three years of the death or injury of a person or the latest date on which a person suffered any economic loss.

“Although consumers no longer have to prove negligence to recover damages, it is still necessary for them to prove that it was the tainted food sold to them by the outlet that caused them to get ill,” said Ms Mphahlele, who added that consumers should get medical evidence to confirm that the illness is directly linked to the food they ate.

The CPA does not specifically state where a consumer may lodge a claim for damages.

However, section 61(6) refers to the court’s power to determine whether any harm claim has been proven, so you could lodge a claim at the magistrate’s court or at the high court.

The CGSO has mediated disputes between consumers and suppliers relating to spoiled food or illness as a result of eating food at a restaurant or from a take-away.

Which means that consumers can lodge a complaint relating to food poisoning with the CGSO.

“In many instances suppliers provided replacements or refunds where the products did not cause any illness.

“Where illness arose, suppliers provided additional compensation, despite the consumer not supplying proof that their illness is directly linked to the product consumed, nor the supplier admitting liability.”

However, Ms Mphahlele cautioned that the CGSO can only assist parties to resolve the dispute amicably.

Where the CGSO fails to resolve the dispute, the consumer can approach the NCC or proceed to court where a claim for damages is involved.

The ombud urged consumers to follow the recall directive issued by the NCC as well as the food safety guidelines issued by the health ministry, which also advised people to avoid ready-to-eat processed foods to avoid cross-contamination.

The health ministry said that all South Africans should practice basic food hygiene.

The seven commandments are:

Keep clean: wash your hands before handling food and often during food preparation;

Separate raw and cooked: separate raw meat, poultry and seafood from other foods;

Cook thoroughly: especially meat, poultry, eggs and seafood;

Keep food at safe temperatures: refrigerate and reheat foods correctly;

Use safe water and raw materials: make water safe by boiling it;

Choose foods processed for safety such as pasteurised dairy products; and

Wash fruits and vegetables thoroughly, especially if eaten raw.

Here are the helpline numbers for more information about the listeriosis product recalls or to lodge a complaint: Tiger Brands 0860 33 33 10, Pick * Pay 0800 11 22 88, Spar 0860 313 141, Woolworths 0860 022 002, Game 0861 426 322, Makro 0860 300 999, Jumbo 0861 744 353 and Shoprite 0800 01 07 09. If consumers struggle to get through to the numbers provided or are not able to resolve their disputes with the suppliers, they can visit: www.cgso.org.za or email mailto:info@cgso.org.za for help.