Tim James continues the investigation into the strange tale of producers and the authorities conniving to ignore the regulations

1. The law explicitly forbids this use of varietal names on coolers.

2. The Liquor Products Division of the Department of Agriculture, which must pass all labels as acceptable, has ignored this law. As a result numerous brands of coolers on the shelves use the varietal names associated with wine. Further, a year ago Distell was permitted to omit from its front label the word ‘cooler’. Following the threat of legal action by at least one other producer who had not been allowed to do this, the practice is now widely followed.

3. The Wine and Spirit Board has agreed to recommend a change in the law, whereby these beverages (which are not, by definition, wines) will be allowed to refer to grape varieties on their labels. It should be stressed that this remains a proposal. (We have pointed out to the Board that their support for changing the law moves in a directly contradictory direction to, eg, the USA, which recently banned the practice after objections from the wine industrry and after establishing that it was likely to lead to consumer confusion. Our recent request for a statement was put to a meeting of the Board Committee after we went to press.)

To take the matter further, we decided to approach Distell, whose River dew range seems to us among the worst offenders, in that it makes specific reference on its labels to the beverage being, for example, a ‘classic Pinotage infused with fruity raspberry’. Distell is, furthermore, one of the largest producers, and its employees sat on the Wine and Spirit Board working group which advocated a change in the law.

The important question we asked Mr André Steyn, Distell’s Director of Corp-orate Affairs, after quoting the regulations forbidding the use of varietal names on cooler labels, was simply: ‘Why did Distell choose to ignore these regulations for the labelling of the River dew coolers’.

Mr Steyn (who is himself a lawyer) replied as follows:

We are obliged to comply with the laws of the land and do not have the option of simply ignoring them nor should we be allowed to do so. We are, however, entitled to our interpretation of the law. Without detailing the legal argument suffice to say that the packaging of River dew with its prominent depiction and description of a fruit could not possibly lead to confusion as to its contents. The varietal descriptor is factually correct as the wine constituent is wholly made from grapes of the variety indicated.... The prohibition on varietal names was introduced at a time when the category was ‘Flavoured Wine’ and was intended as supplementary to the general prohibition on misrepresentation. When the category name changed to delete the reference to wine, it was no longer necessary.

The internal contradiction in this response is inevitable – and clear. On the one hand Mr Steyn suggests that Distell had somehow interpreted the law as allowing a ‘varietal descriptor’. On the other hand he admits that there was a ‘prohibition on varietal names’.

It is, of course, rather difficult to claim that the law already allows for something when you are also supporting a change in the law in order that that thing should become legal! Whether Distell and the labelling authority think that there is good reason to change the law or not is beside the point, as any competent lawyer would tell them. And it is not up to Distell to guess what the legislators really want, as that competent lawyer would also tell them. The fact remains that Distell (and some other cooler producers) are defying the law as it stands. It is hard to believe that a company the size of Distell, which employs more lawyers than just Mr Steyn, is doing so without being aware of this.

The even more worrying fact is that the Liquor Products Division of the Dept of Agriculture connives at the practice – although they know, in the words of a senior official, that the Liquor Products Act ‘currently does not allow the use of cultivar names on coolers’.

Grape also asked Mr Steyn the following: Given Distell’s apparent orientation to reviving and rebuilding its wine brands on a higher level, does it not think that cheapening the image of grape varieties in this way is an unfortunate thing? The reply was:

We are committed to building our wine brands on the platform of brand SA. In this context the reputation of a varietal name is inextricably tied to the brand name or to an area of origin. We do not believe that we are cheapening any image that varietal names might have by marketing a product such as River dew nor do we understand how a product so clearly distinguishable from wine can do so.

The labelling authorities have already, unfortunately, agreed with Distell that the reference on the label to the contents being ‘classic Pinotage’ (or ‘classic cabernet’, or ‘classic chenin’) is unlikely to mislead, and that no-one is likely to think of it as wine. We disagree, and invite our readers to judge for themselves – it would be unfair to reproduce a label in our modest monochrome, but anyone will presumably be able to easily find River Dew as I did – where else but in the local supermarket’s wine department?