Advertising law is, generally speaking, a very broad area of law. Specific rules apply depending on the type of product or service you are advertising. However, the overarching piece of legislation for companies to consider when advertising to the public is the Consumer Protection Act 68 of 2008 (“the CPA”), which promotes the advertising of products in a fair and reasonable manner. It also forces advertisers to ensure that no misrepresentation is made about their products.

In addition to the general CPA provisions, the actual content of an advertisement is regulated through a self-regulatory system with the Advertising Standards Authority of South Africa (“the ASA”) at its head. The Code of Advertising Practice (“the Code”) is the guiding document of the ASA. To read more on the ASA, see http://www.asasa.org.za/.

As a starting point, advertisers must ensure that the content of their advertisements comply with the Code. Depending on the specific product or service being promoted, specific legislation may also need to be considered. For example, in addition to the Code, if you are an advertiser who promotes: 

1. food products – you must consider the Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972;
2. medicines – you must consider the Medicines and Related Substances Act 101 of 1965 and its related Code of Marketing Practice;
3. credit products or services – you must consider the National Credit Act 34 of 2005 as it relates to advertising practices by credit providers;
4. insurance products – you must consider the Short -Term Insurance Act 53 of 1998, the Long -Term Insurance Act 52 of 1998, and/or the Financial Advisory and Intermediary Services Act 37 of 2002, where applicable.

And so the list goes on.

What is considered an “advertisement” in terms of the ASA Code?

Firstly, you will have to determine whether the content of your product or service promotion falls within the definition of an “advertisement” in terms of the Code. The definition reads:

“advertisement means, any visual or aural communication, representation, reference or notification of any kind –

1. which is intended to promote the sale, leasing or use of any goods or services; or
2. which appeals for or promotes the support of any cause.

Promotional content of display material, menus, labels, and packaging also fall within the definition. Editorial material is not an advertisement, unless it is editorial for which consideration has been given or received.

The word ‘advertisement’ applies to published advertising wherever it may appear. It does not apply to editorial or programming publicity.”

It is common knowledge that each specific social media platform, such as Twitter or Facebook, has its own advertising rules to follow. In South Africa there is currently no legislation aimed at dealing specifically with advertising on social media. It can however be argued that the definition of “advertisement” is so wide and flexible that it could allow for the inclusion of new types of advertising such as websites, SMS’s, emails, and social media posts. Laws and regulations applicable to traditional advertising should therefore also apply to social media advertising. It is expected that the Code will also apply to social media advertising and that complaints about social media advertisements will be considered by the ASA in the same manner as those in more traditional formats.

What are the main aspects of the Code?

Section II contains the “flesh” of the Code which has been interpreted and qualified by numerous ASA rulings. The most obvious content to stay clear of include:

• Advertisements that contain “offensive advertising” – usually based on sex, religion, race and politics (clause 1). The main question is whether the hypothetical reasonable person would be offended by the commercial.
• Advertisements that (i) play on fear without a justifiable reason (clause 3.1); (ii) contain any content which might lead to acts of violence (clause 3.2) or illegal activities (clause 3.3); (iii) is discriminatory (clause 3.4); or (iv) contains gender stereotyping or negative gender portrayal (clause 3.5). With some of these prohibitions exceptions to the general rule may apply.
• Advertisements that contain any statement or visual presentation which, directly or by implication, omission, ambiguity, exaggerated claim or otherwise, is likely to mislead the consumer (clause 4.2.1). Advertising in this context will again need to be considered as a whole, in context and objectively from the viewpoint of the hypothetical reasonable person who is neither overcritical nor hypersensitive.
• Advertisements that take advantage of the advertising goodwill relating to the trade name or symbol of the product or service of another – also known as exploitation of advertising goodwill (clause 8).
• Advertisements that consciously copy or imitate the original intellectual thought of another (clause 9).
• Advertisements that encourage children to do dangerous things, exploit their innocence; encourage them to nag; and sexually exploit them (clause 14).
• Advertisements that attack, discredit or disparage other products, services, advertisers or advertisements directly or indirectly (clause 6.1). The guiding principle in all comparisons shall be that products or services should be promoted on their own merits and not on the demerits of competitive products (clause 7.4). Comparative advertising is not illegal in South Africa, but certain requirements must be met. For example: “Works faster than our nearest competitor”. The claim makes a factual comparison with the competitor, does not use another’s trademark, and does not belittle the competitor – therefore it will be acceptable as long as it is true.

What is considered an “advertisement” in terms of the ASA Code?

Firstly, you will have to determine whether the content of your product or service promotion falls within the definition of an “advertisement” in terms of the Code. The definition reads:

“advertisement means, any visual or aural communication, representation, reference or notification of any kind –

1. which is intended to promote the sale, leasing or use of any goods or services; or
2. which appeals for or promotes the support of any cause.

Promotional content of display material, menus, labels, and packaging also fall within the definition. Editorial material is not an advertisement, unless it is editorial for which consideration has been given or received.

The word ‘advertisement’ applies to published advertising wherever it may appear. It does not apply to editorial or programming publicity.”

It is common knowledge that each specific social media platform, such as Twitter or Facebook, has its own advertising rules to follow. In South Africa there is currently no legislation aimed at dealing specifically with advertising on social media. It can however be argued that the definition of “advertisement” is so wide and flexible that it could allow for the inclusion of new types of advertising such as websites, SMS’s, emails, and social media posts. Laws and regulations applicable to traditional advertising should therefore also apply to social media advertising. It is expected that the Code will also apply to social media advertising and that complaints about social media advertisements will be considered by the ASA in the same manner as those in more traditional formats.

What are the main aspects of the Code?

Section II contains the “flesh” of the Code which has been interpreted and qualified by numerous ASA rulings. The most obvious content to stay clear of include:

• Advertisements that contain “offensive advertising” – usually based on sex, religion, race and politics (clause 1). The main question is whether the hypothetical reasonable person would be offended by the commercial.
• Advertisements that (i) play on fear without a justifiable reason (clause 3.1); (ii) contain any content which might lead to acts of violence (clause 3.2) or illegal activities (clause 3.3); (iii) is discriminatory (clause 3.4); or (iv) contains gender stereotyping or negative gender portrayal (clause 3.5). With some of these prohibitions exceptions to the general rule may apply.
• Advertisements that contain any statement or visual presentation which, directly or by implication, omission, ambiguity, exaggerated claim or otherwise, is likely to mislead the consumer (clause 4.2.1). Advertising in this context will again need to be considered as a whole, in context and objectively from the viewpoint of the hypothetical reasonable person who is neither overcritical nor hypersensitive.
• Advertisements that take advantage of the advertising goodwill relating to the trade name or symbol of the product or service of another – also known as exploitation of advertising goodwill (clause 8).
• Advertisements that consciously copy or imitate the original intellectual thought of another (clause 9).
• Advertisements that encourage children to do dangerous things, exploit their innocence; encourage them to nag; and sexually exploit them (clause 14).
• Advertisements that attack, discredit or disparage other products, services, advertisers or advertisements directly or indirectly (clause 6.1). The guiding principle in all comparisons shall be that products or services should be promoted on their own merits and not on the demerits of competitive products (clause 7.4). Comparative advertising is not illegal in South Africa, but certain requirements must be met. For example: “Works faster than our nearest competitor”. The claim makes a factual comparison with the competitor, does not use another’s trademark, and does not belittle the competitor – therefore it will be acceptable as long as it is true.

Original article published on Dommisse Attorneys website here.