SECTION A OVERVIEW

This database opened January 2023

Continuing draft June and July 2023

The Self-Regulatory Organisation (SRO) is the Advertising Regulatory Board (ARB)

(011) 593 3104    |    info@arb.org.za

ARB Newsletter Q3 2023. Released October 11, 2023

Zuma vs Zhuma July 11, 2023

Jo'burg, 26 June 2023. Bliss Brands leave to appeal case dismissed by the Constitutional Court

Commentary on the below from the Citizen business editor July 7, 2023 

Draft regulations on the labelling and advertising of foodstuffs. April 21, 2023

Comments until July 21. Key aspects Definition of a child: The updated document confirms child means under 18, per SA constitution. Restrictions extended beyond pre-packed goods to also cover those from catering establishments. Ads for products carrying a front-of-pack label (FOPL) must not depict or contain references to children alongside “young adults”, not defined. In addition to the previous restrictions on depicting celebrities, sports stars, cartoons or computer animations, as well as competitions, collectibles or gifts. Also maintained is the prior restriction on “abusing positive family values”, that would prohibit the portrayal of happy families in ads or front of pack. Restrictions would forbid the sale of clothing or other merchandise which has brand logos of FOPL products

 Paid-ranking code amendment here. The clause On intermediation services, search platforms and any similar digital platforms, where businesses pay for a particular rank position, or a boost in their ranking, on the search results page, this constitutes a form of advertising and must be clearly identifiable to the average user through appropriate labels such as: 12.5.1 ‘Sponsored’, 12.5.2 ‘Promoted’ or 12.5.3 ‘Ad’March 9, 2023

Appendix on Vapour Products. March 9, 2023

New crypto currency clauses added to code. 23 January, 2023

Health Dept on track to tighten food labelling and advertising November 18, 2022

Advertising Regulatory Board: a major development from ENSafrica/ Lexology; and here is ARB's April 2022 report of the case

In brief: prohibited and controlled advertising in South Africa. From Herbert Smith Freehills LLP/ Lex March 28, 2023 and 

Q&A: misleading advertising practices in South Africa from the same cource and same date 

Preface:

https://arb.org.za/assets/preface-v2021.1rev.pdf

Section I - Introduction  v. 2021.1

https://arb.org.za/assets/section-i-introduction-v2021.1.pdf

Contains preamble, scope, definitions, interpretations

Section II - General Principles v. 2021.1

https://www.arb.org.za/assets/section-ii-general-principles-v2021.1.pdf

Covers issues such as Honesty, offense, gender, substantiation, pricing, identification

• 2.1 Commercial advertising. The primary object of this Code is the regulation of commercial advertising. It applies therefore (except as expressly provided further on) to all advertisements for the supply of goods or services or the provision of facilities by way of trade, and also to advertisements other than those for specific products which are placed in the course of trade by or on behalf of any trader.
• 2.2 Non-commercial advertising. In addition the Code applies, so far as is appropriate, to advertisements by government departments and agencies and to those by other non-commercial organisations and individuals.
• 2.3 Political advertising. The provisions of paragraphs 2.1 and 2.2 above must not be interpreted to bring political advertisements into the sphere of the ARB’s functions. As in the case of any advertisement, the individual medium must determine whether any political advertisement presented to it is acceptable.
• 2.4 Controversial subjects/Advocacy advertising. To the extent that any advertisement:

• expresses an opinion on a matter which is the subject of controversy; and
• that controversy involves issues within the areas, broadly defined, of public policy and practice, then that opinion will not be subject to the provisions of the Code relating to misleading claims except that

All advertisements which contain such controversial statements should:

• be readily recognisable as advertisements;
• cause no confusion as to the identity or status of the advertiser;
• whenever such information is not readily available state the advertiser’s address and telephone number

Appendix A. Alcohol 2022

Appendix G. Advertising containing environmental claims 2022

Appendix J. Food and beverage code 2022

Appendix B. Cosmetic advertising 2022

TBC

On 19 June, the Advertising Regulatory Board, ARB, the Marketing Association of South Africa, MASA, and WFA are organizing a roundtable discussion in Johannesburg to strive to find a South African marketing approach to Regulation 3337 (above under recent issues/ news)

 Independent Communications Authority of South Africa (ICASA)

Advertising, Infomercials and Programme Sponsorship Regulations 2023

Commentary on the above from Biz Community here July 19, 2023

Social Media code from the ARB. Appendix K

Appendix C. Direct Marketing Advertising – DMASA 

SECTION B. CONTENT RULES

We have extracted only those elements of the rules that we know to be most significant. The full code or law should be understood. 

1. GENERAL PRINCIPLES 

2. ENVIRONMENTAL CLAIMS

3. CHIILDREN

4. COMPARATIVE ADVERTISING

5. RULINGS (2023 linked)

1. Offensive advertising

• 1.1 No advertising may offend against good taste or decency or be offensive to public or sectoral values and sensitivities, unless the advertising is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
• 1.2 Advertisements should contain nothing that is likely to cause serious or widespread or sectoral offence. The fact that a particular product, service or advertisement may be offensive to some is not in itself sufficient grounds for upholding an objection to an advertisement for that product or service. In considering whether an advertisement is offensive, consideration will be given, inter alia, to the context, medium, likely audience, the nature of the product or service, prevailing standards, degree of social concern, and public interest.

2. Honesty

• Advertisements should not be so framed as to abuse the trust of the consumer or exploit their lack of experience, knowledge or credulity.

3. Unacceptable advertising

• 3.1 Fear. Advertisements must not, without justifiable reason, play on fear.
• 3.2 Violence. Advertisements must not contain anything which might lead or lend support to acts of violence, including gender-based violence, nor should they appear to condone such acts.
• 3.3 Legality. Advertisements must not contain anything which might lead or lend support to criminal or illegal activities, nor should they appear to condone such activities.
• 3.4 Discrimination. No advertisements may contain content of any description that is discriminatory, unless, in the opinion of the ARB, such discrimination is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
  
  Refer to Section I, definitions.

3.5 Gender

• Gender stereotyping or negative gender portrayal must not be permitted in advertising, unless in the opinion of the ARB, such stereotyping or portrayal is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

3.6 Sounds in radio advertisements

• Advertisements must not include sounds that are likely to create a safety hazard, for example, to those listening to the radio while driving.

4. Truthful presentation 

4.1 Substantiation

• 4.1.1 Before advertising is published, advertisers must hold in their possession documentary evidence as set out in Clause 4.1, to support all claims, whether direct or implied, that are capable of objective substantiation.
• 4.1.2 Documentary evidence, whether in the form of survey data or any other documentation, must be up to date and current, and must have market relevance.
• 4.1.3 Survey data submitted as documentary evidence must conform to the following:

• 4.1.3.1 The survey must emanate from a SAMRA Accredited Marketing Researcher or an entity acceptable to the Southern African Marketing Research Association, and \
• 4.1.3.2 The accuracy of the claims based on the survey must be confirmed by a SAMRA Accredited Marketing Researcher or an entity acceptable to the Southern African Marketing Research Association. 
• 4.1.3.3 The onus is on the advertiser to obtain confirmation from SAMRA that any researcher or entity is accredited or acceptable, as the case may be.
• 4.1.4 Documentary evidence, other than survey data, must emanate from or be evaluated by a person/entity, which is independent, credible, and an expert in the field to which the claims relate and be acceptable to the ARB. In the case of documentary evidence, other than survey data, such expert may, if appropriate, be, but is not limited to, a SAMRA Accredited Researcher.
• 4.1.5 [Intentionally blank – legacy numbering]
• 4.1.6 Claims based on research conducted by publications must clearly state the source in advertising.
• 4.1.7 Upon payment of the administrative fee, determined by the ARB from time to time, the Directorate may consider new substantiation submitted after a ruling has been made by the ARB rejecting substantiation or upholding a complaint based on substantiation.
• 4.1.8 Once a ruling has been made by the ARB accepting substantiation, the complainant may either –

• 4.1.8.1 appeal against the acceptance in the ruling on the evidence in terms of clause 4.1 of Section II; or
• 4.1.8.2 call for arbitration in terms of clause 16 of the Procedural Guide.

4.2 Claims
 

• 4.2.1 Misleading claims. Advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer.
• 4.2.2 Puffery Value judgments, matters of opinion or subjective assessments are permissible provided that -

• it is clear what is being expressed is an opinion;
• there is no likelihood of the opinion or the way it is expressed, misleading consumers about any aspect of a product or service which is capable of being objectively assessed in the light of generally accepted standards. The guiding principle is that puffery is acceptable when an expression of opinion, but unacceptable when viewed as an expression of fact.

4.2.3 Hyperbole
 

• Obvious untruths, harmless parody or exaggerations, intended to catch the eye or to amuse, are permissible provided that they are clearly to be seen as humorous or hyperbolic and are not likely to be understood as making literal claims for the advertised product.

4.2.4 Expert opinion
 

• Where informed opinion is claimed in support of a product, such opinion must be substantiated by independent evidence.

4.2.5 Statistics and scientific information
 

• Advertisements should not misuse research results or quotations from technical and scientific literature. Statistics should not be so presented as to imply that they have a greater validity than is the case. Scientific terms should not be misused, and scientific jargon and irrelevancies should not be used to make claims appear to have a scientific basis they do not possess.

 1. General

• 1.1 This Appendix is supplementary to the general provisions of the Code. Special care should be taken by advertisers to ensure that the spirit as well as the letter of the provisions of the whole Code are scrupulously observed.
• 1.2 In this Appendix–

• 1.2.1 “Environmental claim” means any direct or indirect claim, representation, reference or indication in an advertisement relating to the immediate or future impact or influence on the environment of a product or its packaging or a service.
• 1.2.2 Unless the context otherwise requires, a reference to the product is deemed to include reference to any packaging in which the product or any of its components are or were at any time contained.
• 1.2.3 All environmental claims and statements made in advertising should provide accurate information, meaningful to the consumer and based on recognised scientific standards and principles.
• 1.2.4 Advertisements should not contain vague, incomplete or irrelevant statements about environmental matters, nor should it impair public confidence in the efforts made by the business community to improve its ecological standards. 

• 2.1 Advertisements containing unqualified claims and statements about environmental matters will be interpreted as meaning “100%”, and shall be subject to substantiation. 
  The same principle will apply to descriptions such as “. . . free”or “contains no . . .” which will be assumed to claim total absence of the stated substance.

• 2.2 Corporate claims in advertising may refer to specific products orvactions, but may not imply that they extend to the company’s performance functions as a whole, unless this can be substantiated.
• 2.3 Advertisements should clearly indicate whether the claims made relate to the products or packaging, and in the absence of such indication shall be considered to be referring to both.
• 2.4 Advertisements containing general statements such as “environmentally friendly” or “ozone friendly” or “green”, or graphics or symbols designed to convey a similar environmental message, will not be permitted unless qualified by a description of the benefit conferred, e.g. “ozone friendly – free from CFC’s”.
• 2.5 Environmental signs or symbols used in advertising should clearly indicate their source and should not imply official approval.