Formal recognition of the ASA September 2016

By GAIL SCHIMMEL, Published in Advertising

After the decision in the Johannesburg High Court in the matter of Herbex (Pty) Ltd v The Advertising Standards Authority [2016] (14/45714) (25 April 2016) (ZAGPJHC), the Advertising Standards Authority (ASA) was left in a precarious position in that it no longer has jurisdiction over non-members. It is in this context that the ASA's publication of its application in terms of s82 of the Consumer Protection Act (68 of 2008) (CPA) is most welcome.

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Section 82 essentially allows for the Minister to recognise an existing industry code, and if the code in question provides a system of adjudication – as is the case with the ASA Code – the scheme can be recognised as an accredited industry ombud.

There is no doubt in my mind that systems such as the ASA, if not the ASA itself, are exactly what was in the minds of the drafters of the CPA when they included this clause. Recognition of the ASA will effectively achieve two important things:

  • The CPA and its bodies will not need to reinvent a wheel that is, essentially, working. The ASA has been tasked with advertising regulation since 1968 and – with the exception of the financial challenges of the last few years – has met this task head-on. The ASA system is also part of an international norm in advertising regulation, with the South African ASA a member of the European Advertising Standards Alliance.
  • Recognition of the ASA in terms of s82 will give it the force of law that it currently lacks. This will, at its heart, ensure that the ASA can continue to protect consumers from rogue advertisers, only with even more effect.

This being said, there are a number of challenges in the current application, and for me these arise from the ASA's decision to prune its Code from the current Code for the purposes of this application.

Significant clauses that have not been published in the CPA application include:

  • The clause relating to offensive advertising (Clause 1 of Section II)
  • The clause relating to disparaging advertising (Clause 6 of Section II)
  • The clause relating to comparative advertising (Clause 7 of Section II)
  • The clause protecting against imitation (Clause 9 of Section II) and exploitation of goodwill (Clause 8 of Section II)
  • The clause relating to legal advertising (Clause 3.1 of Section II)
  • The clauses relating to gender and discrimination (Clause 3.4 and 3.5 of Section II)
  • The clause protecting individual privacy (Clause 11 of Section II)
  • The clause protecting children (Clause 14 of Section II)
    The whole of Section III which regulates certain specific sections of advertising that have proven challenging in the past.

At first glance, it would appear that the reason that this has been done is to keep the Code strictly in line with the idea of "consumer" protection. But, once unpacked, this makes little sense. All the clauses in the Code have as their end purpose, consumer protection. And the CPA is quite clear that the reach of the Code does not have to be limited to consumer facing complaints. The definition of industry code in s82 specifies that it regulates the interaction between or among persons conducting business within the industry and includes "any existing scheme that has been voluntarily established within an industry to regulate the conduct of persons conducting business within that industry". It therefore appears to specifically and clearly envisage regulation of behaviour as between competitors and not merely in relation to the consumer. In addition, the published Code itself specifically envisages between competitor complaints (at s 4.2.2).

The final anomaly in the approach is that the existing appendices, which are effectively the Codes of certain specific industries, are then willy-nilly included in the proposed Code. It is hard to understand how the ASA sees this playing out. Will they have two Codes, one of which has the force of law and one which does not? Or will they simply abandon half of the existing code, for no apparent reason and to the detriment of the consumer? This latter move will leave large swathes of delinquent behaviour unregulated and will bring South Africa out of line with international norms. I am delighted by the move towards recognition of the ASA in terms of the CPA, but I hope that the lessons of the last 45-years of advertising regulation are not simply abandoned in pursuit of a slimmer Code.

Schimmel specialises in Advertising Law.

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