Consumer Advertising and Regulatory
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Advertising to consumers is regulated by various instruments of legislation, regulations and industry codes. Many intersect with and complement each other. The Consumer Protection Act 68 of 2008 establishes the consumer’s basic rights, which include the right not to be misled and not to be subjected to unfair terms in an agreement.
Various other acts and regulations regulate the advertising of specific products, such as wine, food and tobacco products, and services, such as banking, financial, medical and real estate services.
In addition, it is prudent for advertisers in South Africa to comply with the practice, ethics and standards set out in the Code of Advertising Practice of the Advertising Regulatory Board (ARB). Complaints before the ARB can lead to negative publicity; many have even gone viral on social media platforms.
There are various regulations that determine the applicable standards for labelling products in South Africa.
For example, the labelling and packaging of foodstuffs must comply with the Foodstuffs, Cosmetics and Disinfectants Act No. 54 of 1972 and its regulations and/or the Agricultural Products Standards Act 119 of 1990 and its regulations.
Different standards apply to products for children and infants, while still others apply to categories of products like rice, beans, maize, honey, sweeteners and frozen foods.
When it comes to pharmaceuticals, specific labelling requirements apply to different schedules of pharmaceuticals, and others to complementary medicines. The advertisement of certain medications is also limited or restricted.
It’s important to remember that the ARB Code can apply to product labelling too, as product packaging constitutes an “advertisement” under the ARB Code.
It is important to know exactly which forum can hear which matter.
In respect of violations of the ARB Code, complaints can be filed directly with the ARB by consumers or competitors, and the ARB can impose sanctions and/or issue directives to its members calling for the withdrawal of the advertisement or packaging concerned.
In respect of the Consumer Protection Act (CPA), the CPA has created various forums for complaints to be lodged. Such complaints can be lodged with the Consumer Tribunal, escalated to the Consumer Commission, and further escalated to the Consumer Court and the High Court.
There are also various ombudsmen, accredited in terms of the CPA, to hear complaints relating to specific industries; for example, The Consumer Goods and Services Ombud (CGSO), The Motor Industry Ombudsman of South Africa (MIOSA), and others.
Matters relating to unlawful competition are heard in the High Court.