Drink on this - it wasn’t glass after all

It was huge news, and rightly so - Pioneer Foods recalled about 270,000 cans of its Liquifruit grape fruit after consumers reported finding “small glass shards” in their cans.

It turns out those particles were actually crystals of harmless cream of tartar, masquerading as glass. “But I don’t blame those three consumers who reported it to us for thinking it was glass,” says Pioneer Foods CEO Tertius Carstens.

The particles have been found to be “potassium bitartrate crystals”, a naturally occurring substance in products made from grapes, such as grape juice and wine. 

“Crystallisation occurs under certain conditions, such as low temperature,” Pioneer Foods said in an advert in several newspapers this morning. 

“In this case, it occurred after processing and canning.” “Potassium bitartrate is more commonly known as cream of tartar when used as a cooking aid." 

“We made the right call with regard to the recall,” Carstens said. “And we are continuing with it, because while it's a natural substance and it’s not toxic, those crystals should not be there.”

“Consumers are still advised not to consume or dispose of the product, but to return it to the retailer where it was purchased, for a full refund,” the advert reads.

“Pioneer Foods apologises for any anxiety and concern caused while we awaited the outcome of detailed analysis of the crystals."

RECALL BATCH DETAILS:

Pioneer Foods Product Code: 27327
Outer case Barcode: 6001240225615
Shrink pack Barcode: 6001240225608 
Single Unit Barcode: 6001240225592 – (printed on side of can)
With this specific date coding BB 01.04.2021 C TIME and BB02.04.2021 C TIME

Hey gyms: here’s what the Ombud thinks of your lockdown policies

It’s been a very hot topic throughout lockdown - how the various gym companies treated their clients during the five months they were unable to open. 

Some continued to debit them as usual but gave them “free” extra months at the end of their contracts - which many said they did not want - while Planet Fitness didn’t debit their members, but recently revealed that all their contracts were extended by five months, meaning they were locked in for another five months, and couldn’t cancel without penalty.

I consulted the Consumer Goods and Services Ombud, Magauta Mphahlele, about this, and this is what she and her legal team have come up with:

Based on the information we have been provided with and the complaints received, the Gyms seem to have treated the period of the lockdown as an interruption of the fixed term period which resulted in the deferral of the parties’ rights and obligations under the agreement. 

Now that the lockdown has been relaxed the rights and obligations of the parties are revived and the Gyms have extended the existing contracts by the number of months when they could not operate. 

While this might in itself not be wrong in the context of a pandemic and forced lockdown, we are of the view that this extension is a notifiable change since the consumer could not have necessarily contemplated what the implications of freezing their contracts could have been. 

We base this view on the provisions of section 14(2)(c ) and (d) which does not necessarily address a forced lockdown scenario but provides guidance on how suppliers should treat any changes to the extension or termination of the contract.
 
(c) of not more than 80, nor less than 40, business days before the expiry date of the fixed term of the consumer agreement, the supplier must notify the consumer in writing or any other recordable form, of the impending expiry date, including a notice of—
(i) any material changes that would apply if the agreement is to be renewed or may otherwise continue beyond the expiry date; and
(ii) the options available to the consumer in terms of paragraph (d); and
(d) on the expiry of the fixed term of the consumer agreement, it will be automatically continued on a month-to-month basis, subject to any material changes of which the supplier has given notice, as contemplated in paragraph (c), unless the consumer expressly—
(i) directs the supplier to terminate the agreement on the expiry date; or
(ii) agrees to a renewal of the agreement for a further fixed term.
 
A notification to consumers would be good business practice as it would allow consumers to weigh their options including the financial implications of either cancelling, renewing or allowing the extension.
 
Based on the complaints we received there are various scenarios that played out:
 
• If the Gym could not offer the service and did not charge for the service during the lockdown,   Gyms extend the period of the contract by the number of months during which the service was interrupted and charge for those months subject to advance notification. In this scenario, the normal cancellation terms and conditions would apply if the consumer cancels prior to the expiry of the extended fixed term.
 
• If the Gym continued to charge for the service during the lockdown when the service was not provided, the consumer was offered free months at the end of the expiry of the term of their contract. Some consumers agreed to this offer, especially where they intended to renew their contracts for a further term. Alternatively, if the consumer does not wish to continue with the agreement beyond its expiry, we are of the view that they would be entitled to a refund of the months they paid but did not use.

• It seems that there were certain cases where the option of continuing payment and extending the agreement beyond the expiry of its term was agreed between the consumer and the Gym concerned. If the consumer cancels prior to the expiry of the fixed term then we are of the view that, subject to deducting a reasonable cancellation fee that would be payable in terms of section 14 in any event, they would be entitled to a refund of the months they had paid for but did not use.

• If the business charged a discounted fee during the lockdown, then we are of the view that the principles above would apply in that if the consumer wishes to extend the agreement beyond its expiry, they would be liable to pay a prorated fee for the extended months or be refunded the discounted fee that they had paid should they not wish to extend the agreement. This should have been negotiated upfront with the consumer.

To read more from Wendy Knowler, see below:

1. Social distancing on the plane & gym contract disputes: KZN asks Wendy Knowler
2. Non-paying tenant and mounting interest on a debt - Wendy Knowler wades in
3. Can you be charged for early settlement of loan? KZN asks Wendy Knowler
   
4. You might be paying decade-old cellphone insurance! Wendy Knowler can help
   
5. Companies behaving badly - Wendy Knowler wades in

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