Being very kind to coolers

Why have the authorities allowed producers of wine-based ‘coolers’ (especially some of them) to get away with defiance of the law?  It all seems pretty scandalous to Tim James

The law as it stands is unambiguous. In connection with a ‘flavoured grape liquor’ you may not use a word or expression that gives the impression that the product is wine. More specifically, too, you may not describe it in terms of grape varieties. Yet for years now wine-based ‘coolers’ have been making use of varietal names. The Gecko Ridge range from Pernod Ricard, for example, consists of Cape Peach Chardonnay, Tropical Fruit Chenin Blanc, and Melon Gooseberry Sauvignon Blanc. There has been no attempt on the part of the relevant authorities to enforce this rule.

Why? Getting an adequate answer to that simple question proved impossible in the fairly short time available to pursue the matter before going to press. A senior official of the Liquor Products Division of the Department of Agriculture (who wishes to remain anonymous) insisted that the Department and the Wine and Spirit Board had ‘interpreted the legislation as allowing the use of cultivars on labels’. How this interpretation could come about was unexplained, and must remain mysterious, given the straightforwardness of the law.

Armed with this interpretation, our senior official said, the only issue became whether a label might mislead consumers (something which is prohibited by the Liquor Products Act). Clearly, given the lack of action against producers using the names of varieties, it had not been felt that any of the labels could give a false impression. (Some people might have different opinions on what is misleading, of course: one of Distell’s River Dew range of coolers has ‘Chenin Blanc’ prominently on the label; beneath it runs: ‘A classic Chenin Blanc infused with fruity peach’. But as we shall see later, the authorities seem particularly reluctant to enforce the rules against large and important producers.)

So, one statement from the Department of Agriculture claims that they had interpreted the law as allowing for varietal names to appear on labels. Another statement by the same person contradicts this, however, specifically admiting that the Liquor Products Act ‘currently does not allow the use of cultivar names on coolers’. In fact, as she pointed out, it has just been decided to amend the Act – which would hardly have been necessary if what had been going on up to now was in accordance with the law.

It is, of course, also interesting to note how the decision to amend the law comes about. A working group of the Wine and Spirit Board made the recommendation, which was endorsed by the Board. The working group comprised representatives of the Board, the Dept of Agriculture, Distell (one of the major producers of coolers), the Cape Wine and Spirit Institute (representing wholesalers, including Distell), Guinness, and KWV (representing producers). Is it surprising or not that this group made a decision directly in the interests of the big producers who deal with coolers?

By the time of going to press, the secretary of the Wine and Spirit Board had not responded to an emailed request for more information on the proposed new legislation and why the Board thought it desirable to make such a recommendation to government.

One might wonder if the Board’s working group attempted to consult the producer bodies which have a direct stake in not seeing the prostitution of varietal names – the associations of Chenin Blanc, Sauvignon Blanc, Pinotage, etc, producers. Not in the case of the Chenin Producers Association, anyway, as I ascertained from its secretary. It is unfortunate, though, that these producers have not objected before to what was being done to the names of their championed grapes. If they hadn’t noticed, I hope they will notice now, and start objecting!

Legalising falsehood

Is this all significant? As an indication of some of the processes of administering wine legislation in South Africa it is significant. One might recall the difficulties that some wine producers have had in getting their labels accepted; and that, for example, policing the non-inclusion of the word ‘vineyard’ is carried out most meticulously. And it is significant, too, because it is going to legalise, it seems, direct falsehoods.

The composition of all coolers is unknown to me at present. The producers of the Gecko Ridge line claim that 45% of their product is wine – and is, they say, of the variety indicated on the label. The rest is largely added water, together with fruit flavourants and other permitted additives. So the Wine and Spirit Board is recommending that a drink which is less than half composed of wine should be allowed to distinguish itself by the name of a wine-grape variety.

Can this be called truthful? Can this really be seen by the Wine and Spirit Board as being in accordance with other legislation requiring that consumers should not be misled into thinking that a cooler is wine? Remember that if a wine producer wishes to put one varietal name on a bottle, the contents must be certified to be at least 75% of the variety (85% if exported). But if a cooler producer wishes to put the same name on a bottle, the requirement is .... what, 45%? Less? And will any certification be required? – that is unclear as yet, but doubtful. It seems a situation that is hardly equitable and fair to winemakers.

Laws must change in response to changing social needs – this point made by a different person in the Department of Agriculture is valid. But what real need – of consumers that is, rather than of big business – is served by the proposed change in legislation?

There can be little doubt that makers of these drinks intend to sow some confusion – why else would they wish to make use of the names of wine-grape varieties? Why would, for example, Distell have such a prominent description on a label as ‘A classic Chenin Blanc infused with fruity peach’? (More accurate would be: ‘A not-so-classic water/wine blend with peach flavourant’!) Media releases and advertisements speak of ‘fruit-flavoured wine’, or even just ‘wine’ – which is clearly and deliberately misleading.

Flexible rules

Perhaps it is the business of business to make profits, and be sparing with the truth if it would harm sales. It is, though, the business of the regulatory authorities to regulate fairly in accordance with the law. A further aspect of strange behaviour by the authorities which raised eyebrows in our brief investigation sheds some light on their manner of proceeding. Our concern had been purely with the use of varietal names, but Pernod Ricard introduced another. (This producer, it should be said, has been helpful and direct in its responses to our queries.) This concerns the use of the word ‘cooler’ on the labels – the designation is required to be very clear, to assist the customer in identifying the product.

When Gecko Ridge was launched in late 2000, ‘cooler’ appeared on both front and back labels – it seemed this was required by the regulations. In 2002, Distell introduced their River Dew range of coolers, on the front labels of which (the labels facing customers) reference to the nature of the product was notably absent. Apparently, Pernod Ricard decided, reasonably enough, that they too should do this – so changed their label, which was not acceptable to the authorities. When Pernod Ricard then formally challenged the patent double-standards involved, they say they were given to understand that Distell was too powerful to be told to put the word ‘cooler’ on its front label – so Pernod Ricard was then given a go-ahead to do the same. Of course, the authorities have, in this respect, the right to make their own assessments of whether a product’s packaging is misleading.

Thus rules are administered. Thus the consumer is protected from misrepresentation. Thus laws are amended to further the interests of ... whom?

THE LAW

The Liquor Products Division of the Department of Agriculture apparently chose to ignore Regulation 39 (1) (b) of the Regulations relating to the Liquor Products Act which states that:

No person shall ...

in connection with the sale of flavoured grape liquor or grape liquor use a word, expression or reference –

(i)         that, either in general or in a particular case, is used in connection with or to describe wine or spirits, in such a manner that it could create the impression that the product concerned is wine or a spirit; and

(ii)         of which the use in connection with the sale of wine is regulated by section 11 (3) (a) of the Act....

Section 11 (3) (a) of the Liquor Products Act makes it very clear that point (ii) above covers reference to varietal names – a highly regulated issue when it comes to wine.