On 1 November 2021, strict new rules on what manufacturers may label as coffee will come into full force in South Africa, as part of ongoing regulatory efforts to prevent consumers from being misled.

Anything claiming to be a "coffee mix" will have to be at least 75% actual coffee, for instance, while anything that says it is a mixture of chicory and coffee will have to be at least half chicory.

 That seems to require some branding changes for the hugely popular Ricoffy, which is neither majority coffee nor mostly chicory, and so will be denied any formal classification as a coffee-related drink.

 But parent company Nestlé apparently has no intention of changing the way it markets Ricoffy, which it describes as "SA’s No. 1 coffee brand".

Instead it has adopted a singular interpretation of the new rules that, if it were correct, would create a legal mechanism for coffee-ish manufacturers to mislead consumers, badly.

Ricoffy is 25% coffee, and 32.5% chicory. (Much of the rest is made up of dextrins, carbohydrates obtained by chemically treating starch). But it still falls under a newly created category for "instant chicory and coffee extract", its makers Nestlé told Business Insider South Africa – even though that is for drinks made up at least half of chicory.

The definition of the category seems simple enough, as the dried-out version of a related category, "chicory and coffee mixture". That is defined in the new government rules, this way:

"Chicory and coffee mixture --

(a) shall consist of a mixture of chicory and Ground coffee: Provided that chicory shall constitute at least 50 percent (m/m) of the mixture; and

(b) may contain added sugar and/or food additives."

Nestlé says that means it has to start with a mixture that is at least half chicory, but may then add other things (dextrins, for example), to that mixture, and still end up with product it is allowed to call "chicory and coffee".

Representatives would not be drawn on how far it could take such dilution. May it start with a single grain of chicory, half a grain of coffee, add a ton of sugar, and still market a "chicory and coffee mixture"? That seems to be the implication of its interpretation. And the same would be true of the category "coffee and chicory mixture", which on the face of it must be half coffee, but also allows for food additives.

Nestlé may have a hard time convincing others of its novel way of thinking, though. 

Under the new rules, "for a product to be labelled, advertised and sold as a ‘chicory and coffee mixture’ at least 50% of the overall blend must comprise chicory," said Lauren Kohn and Raisa Cachalia, regulatory specialists for Caveat Legal, when asked for their opinion on the regulations.

"Insofar as the permissive provision in (b) allows additives, these may not alter the overall product constituent ratio in a manner that defeats the purpose of the provision; namely ensuring a so-called ‘chicory and coffee mixture’ is just that: a mixture of which at least half is made up of chicory and labelled and advertised accordingly."

Applying the rules in a way that lets something with a tiny amount of chicory and coffee be marketed with a misleading label could undermine the legal foundation of the rules themselves, the lawyers said.

Consumers increasingly want to know what is in their food and drink, Nestlé said in a statement in response to questions from Business Insider.

"We have complied with these expectations by being clear about what our products contain through clear and simpler labelling on all our product packs."

But asked about the label "SA’s No. 1 coffee brand" on Ricoffy, it said only that the claim "is based on various independent market data, which by the way track performances of brands that are categorised under the broad categorization of coffee".