Thousands of Cadbury chocolates have been sold to the public despite being past their best.
The chocolate, some of it months beyond its best-before date, was sold at a major KwaZulu-Natal South Coast wholesaler, which supplies spaza shops and trading stores, including in rural Eastern Cape areas.
And tens of thousands of rands worth of short-dated chocolate was dispatched to wholesaler clients hidden among newer stock.
These claims were made in the labour court in Durban last week.
It was alleged that ambitious sales targets led to massive overstocking in wholesalers.
Most resulted in multimillion-rand returns across KwaZulu-Natal of popular Cadbury brands, including Dairy Milk slabs and Lunch Bars.
A food health expert emphasised there was no risk in eating chocolate past its best-by date.
But a legal expert questioned the ethics of selling such products without clearly informing consumers.
The matter came to light when a sacked sales representative, Hans van Tonder, took his former employer, Diplomat Distributors, to court, claiming he had been victimised and that his dismissal was “automatically unfair”.
Mondelez SA, owners of Cadbury, contracts Diplomat, a logistics company, to distribute its products to wholesalers.
Diplomat fired Van Tonder in April 2016 for gross dereliction of duty after a company hearing found an instance where he failed to timeously report that chocolate at a Port Shepstone client was nearing its best-by date.
But Van Tonder produced emails that show Diplomat had been told by the client that it had been receiving stock with “mixed expiry dates”, which he argued was outside his control.
“It is a major concern as the inner stock on the pallet is short-dated,” wrote a buyer for the wholesaler, who asked what would be done to eradicate the problem.
Van Tonder, who had represented Cadbury products for 16 years, produced a dossier in court, including national stock return figures, emails and other documents which allegedly pointed to widespread problems with overstocking and short-dated stock.
Van Tonder was fired over a R21 835 loss to Diplomat at the Port Shepstone wholesaler.
This was the value of chocolate that had to be removed from the wholesaler in early 2016 after it had past its best-by dates, as well as money spent discounting and promoting the chocolate in a late bid to sell it.
A witness for Van Tonder told the court the R21 835 was “like chalk and cheese” compared with returns of hundreds of thousands of rands of Cadbury chocolate from many other wholesalers across the country.
Shadrach Chinniah, who resigned as a Diplomat rep in October 2016, said: “I thought it was absolutely ludicrous he was dismissed for R21 000 and my store had [old stock worth] R310 000 … why didn’t they dismiss me?”
He told the court a Diplomat manager “cleared” the R310 000 in minibars from a major Durban wholesaler “after it expired”.
The court heard the minibars failed in the marketplace nationally and the line was discontinued.
Chinniah alleged there were:
. Cover-ups by management;
. A lack of support for markdowns to move short-dated stock; and that
. Short-dated stock was hidden among newer stock before delivery, making it hard for merchandisers and reps to keep tabs on best-by dates.
Placed before the court were photographs that were said to show pallet loads of chocolates, all of which were beyond their best-by dates, “being sold on special” at the same Port Shepstone wholesaler, months after Van Tonder’s dismissal.
The pictures, apparently taken in June, show marked-down PS chocolates that had expired on May 25 2016 and Lunch Bars that had expired on April 25 2016.
However, these claims were not examined.
Early on the second day of the hearing, Bongani Khanyile, attorney for Diplomat, applied for the matter to be sent to the Commission for Conciliation, Mediation and Arbitration (CCMA).
He argued Van Tonder was seeking relief for an “automatically unfair” dismissal but had not made a case for this.
Judge Benita Whitcher agreed it was an “ordinary unfair dismissal case” rather than one that involved arbitrary discrimination and ruled her court would not sit on the matter.
An emotional Van Tonder stormed out of the courtroom.
“Three years of this,” he shouted. “They have been lying. I am going to go outside and break down.”
Whitcher later gave a written order directing the CCMA to expedite the matter.
No order was made for costs.
Yinon Ben Anat, chief executive of Diplomat SA said: “Diplomat’s policy is clear in that we do not purchase or sell expired stock [beyond its best-by date].”
He did not comment on claims of overstocking and declined to give details on Diplomat’s contractual relationship with Mondalez.
City Press sent Mondalez a list of questions on overstocking and its policy on the sale of best-by goods. The company declined to comment, saying the matter was before the courts.
“Mondelez SA abides by local legislation and we are focused on bringing the highest-quality products to our consumers,” it said.
It may be old but it won’t kill you
Breathe easier if you have eaten chocolate that has past its best-before date — it might not taste as good but it’s unlikely to harm you.
Janusz Luterek, a Pretoria attorney with a special interest in food law and consumer rights, said there was nothing legal stopping the sale of food past its best-by date — “it’s a quality issue”.
However, Luterek felt there were ethical considerations in selling food past its best-by date.
“A consumer should be informed so he or she has enough information to make an informed decision,” he said.
Luterek pointed out that the Consumer Protection Act gave the public the right to return goods for a refund if they were not of good quality. But quality, he said, was relative to “what it should be”.
Food safety expert Dr Lucia Anelich said best-before dates were an indication of quality, not safety.
“If one exceeds the best-before date for a chocolate bar, for example, it may mean that the quality of the chocolate and ingredients, for example nuts, may deteriorate.
“Nuts may become a little rancid or the chocolate may discolour slightly; none of these is a food safety issue and will not make a consumer ill,” said Anelich, who is the president of the SA Association of Food Science and Technology.
She said best-before dates should not be confused with use-by dates.
These applied to perishables, such as meat and other fresh products.
The Consumer Goods and Services Ombud took a similar line on best-before dates.
“When the date runs out it doesn’t mean that the food will be harmful, but it might begin to lose its flavour and texture.”