South Africa: Advertising Regulatory Issues You Need To Know About

Last Updated: 23 September 2019
Article by Tammi Pretorius

The Advertising Regulatory Board (ARB) been busy at work in the last few months, having issued just under 100 published decisions since it first opened its doors in November 2018, following the liquidation of its predecessor, the Advertising Standards Authority of South Africa, in October 2018.

The ARB's main objective is to protect consumers and competitors from advertising that contravenes the Code of Advertising Practice (Code). Where advertisements are found to be in contravention of the Code, the ARB will generally require the 'offending advertisement' to be withdrawn or amended, or call on its members to refuse to accept the 'offending advertisement' in its current form.

Below are highlights from some rulings recently issued by the ARB.

Bee careful of claims on product packaging

The packaging (and corresponding in-store promotional materials) of Eurosemillas SA's citrus fruit varietal TANGO was called into question by its competitor, Citrogold, in March 2019.

Eurosemillas's TANGO product packaging contained the claim that it is "bee-friendly". Citrogold took issue with this claim because it implied that no harmful pesticides are used in the commercial production of the fruit. Although Eurosemillas argued that the matter was too technical for the ARB to consider, the Directorate took the view that the matter was simple – what would the hypothetical consumer understand the claim "bee-friendly" to mean?

The Directorate held that a consumer is likely to consider the claim to mean that bees would not be harmed by any pesticides or insecticides that may be used and with which bees could come into contact during the growing of the fruit in question. Even though the advertiser appeared to have a plausible, but highly-technical, explanation for the claim, the Directorate did not believe that the hypothetical reasonable consumer would understand the claim to reference the technical explanation and, on this basis, the claim was ambiguous at best, or inaccurate at worse.

Members of the ARB were advised not to accept any advertising for TANGO citrus fruits that include the "bee-friendly" claim.

Takealot.com take a lot

Two separate rulings in August 2019 found that Takealot.com was responsible for advertisements containing misleading claims and thus in breach of the Code of Advertising Practice.

Takealot.com advertised goods on its website as being discounted. The Complainants essentially submitted that the advertised discounts were misleading because the discounts were worked off the list price and not the everyday selling price (for those who do not know the distinction, the list price is the price provided by the supplier, i.e. the recommended retail price, and is not necessarily the price that the goods are actually sold for in the marketplace, i.e. the everyday selling price).

In these particular instances, it appeared that Takealot.com's everyday selling price was actually much less than the recommended retail price, yet it would base its discounts on the recommended retail price, thereby indicating a higher savings to consumers.

The Directorate took the view in both cases that the advertisements were misleading because the saving advertised appeared far higher than what the consumer would, in fact, save.

When "gender stereotyping" is unacceptable

In July 2019, the ARB dismissed a complaint lodged against a First For Women Insurance Company television advertisement promoting car and household insurance cover.

The Complainant was of the view that the advertisement was offensive because it suggested that women want to save money to buy "things" – indicating that women are frivolous, greedy, materialistic and mindless. First For Women, on the other hand, took the view that the advertisement's aim was to educate women on the risks involved with owning expensive items and the insurance products available to mitigate those risks.

Even though the Directorate found the advertisement to be "distasteful and stereotypical", it clarified that not every instance of stereotyping is in breach of the Code of Advertising Practice. Only when advertising portrays people of a certain gender in a manner that exploits, objectifies, or demeans them will it be deemed to be negative stereotyping.

Advertising is a powerful medium for business to promote their goods or services but it is important to ensure that advertisements do not contain any matter that could fall foul of the Code. Ideally, advertisements (which means any visual or aural communication intended to promote the sale, use or support of any goods, services or causes – and includes promotional content of display material, menus, labels and packaging) should be legally vetted to avoid, or at the very least mitigate, the risks of a complaint being lodged or an adverse ruling being issued. The implications of either of these scenarios, from both a reputational and costs perspective, can be significant.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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