Questionable advertising in South Africa
The Advertising Standards Authority of South Africa (ASA) has an Advertising Code that regulates advertising in the country. Generally, the code states that all advertisements must be honest, must not make misleading claims and, where claims are made, provide prior substantiation.
The Advertising Standards Committee (ASC) recently dealt with a matter where E.TV aired a programme for Christ Embassy Church Healing School. The programme told the story of a sickly 17-year-old girl who had been diagnosed with rheumatic heart disease and went through a prayer session with Pastor Chris, who apparently cured her of the disease.
The ASC agreed that the programme was essentially an advertisement, since it ‘appeals for’ and/or ‘promotes’ joining the Healing School, and held that a complainant member of the public (or a competitor) has the right to require substantiation of the claims.
The Healing School was unable to substantiate its claims with medical records of the people who have received ‘miraculous’ healing. The ASC therefore held that the claims made in the programme were unsubstantiated.
In light of the fact that the programme had run its contract, the ASC ordered the Healing School to withdraw the advertisement and refrain from repeating these claims unless they could be substantiated. An appeal by the Healing School was dismissed by the ASA Appeal Committee.
The ASC’s order was varied insofar as it related to future advertising after the Appeal Committee held that the ASC cannot expressly rule on future advertising. While the ASA has the authority to rule against an existing advertisement, it has very little power to effect sanctions against organisations that breach its code, since it is a self-regulatory body.
“The Healing School was unable to substantiate its claims with medical records of the people who have received ‘miraculous’ healing.”
If a company is found guilty of breaching the code, the ASA can call on the organisation to withdraw the advertisement, or correct it. If the offending company fails to comply with the ASA ruling, the ASA will issue an Ad-Alert to its members.
Effectively, this will result in the offending advertisement not being published on TV, radio or in any printed media that is under the control of an ASA member.
While an ASA complaint can only result in the withdrawal of an advertisement, or forcing the organisation to rework the advertisement, it does offer a simple and relatively quick means of acting against an advertisement that fails to meet the standards set out in the code.
However, the ASA has no authority to impose fines or similar penalties. The Consumer Protection Act No 68 of 2008 (CPA), which came into force on April 1, 2011, may be the solution to this shortcoming. The act will, amongst other things, seek to regulate the marketing of goods and/services.
The relevant sections of the CPA in this regard are:
• Section 29, which deals with the general standards for marketing goods and services, such as marketing activities that would mislead or deceive a consumer about the nature, properties, advantages or uses of the goods or services.
• Section 41, which deals with false or deceptive representations (concerning a material fact to a consumer such as the standard, quality or characteristics of goods or services) when marketing goods or services.
If a supplier (defined as a person who markets any goods or services) fails to comply with the provisions of the CPA, a consumer may refer the dispute to:
• The Consumer Tribunal
• The applicable ombudsman
• The relevant consumer court
• An Alternative Dispute Resolution agent
• The Consumer Commission
• A court with jurisdiction (if all other remedies available to the consumer have been exhausted).
The above bodies have various powers. The punitive measures that these bodies can impose range from the ability to force suppliers to discontinue product lines or services or to fine suppliers up to ZAR1million ($146,000).
In addition, the magistrate courts or high courts with jurisdiction have the power to imprison offenders for a period not exceeding 10 years. In view of the heavy fines that can be imposed in terms of the CPA, advertisers will have to exercise extra caution.
