You and Your Rights

If you see or hear an advertisement in a magazine, newspaper or cinema, on radio or television, or in direct-mail literature or on a poster and you believe that it is dishonest or offensive, you can complain to the Advertising Standards Authority (ASA), an adjudicating body set up by the advertising industry to eradicate undesirable advertising practices. Its voluntary code of practice is adhered to by a wide range of advertising practitioners, mail-order firms, marketers and media owners.

According to the ASA code, advertising material must not:

• Contain statements or visual presentation (especially of the human body) offensive to the standards of decency prevailing among persons most likely to be exposed to such material; 

• Be dishonest or abuse the trust of consumers or exploit their lack of experience, their knowledge or their credulity. All descriptions, claims and comparisons should be capable of being substantiated. In particular, no advertisement may be misleading about the value or total price actually to be paid, or about other terms of purchase, such as instalment sales, conditions of delivery, exchange, return, repair and maintenance, or the terms of any guarantee that is offered; 

• Misuse research results or quotations from technical and scientific literature; 

• Play on fear without justifiable reason, or support or appear to condone violence or illegal activities; 

• Offend the religious or other susceptibilities of consumers; 

• Lead consumers to overestimate the value of goods whether by exaggeration or through unrealistic comparisons with other goods or prices; 

• Describe a product as 'free' when there is a charge to the consumer other than the actual cost of delivery, freight or postage (in which event the claim that the product is 'free' must be qualified by a clear statement that such costs are payable); 

• Employ such formulae as 'up to 10 kilometres per litre' or 'from as low as R5' when they are likely to mislead consumers as to the availability of the benefits offered or when they apply only to spoiled or imperfect goods; 

• Use the word 'fresh' in a misleading or confusing way; 

• Attack or denigrate other products, advertisers or advertisements or single out a specific product or service for unfavourable comparison (a practice known as 'comparative advertising'). However, a limited form of comparative advertising subject to strict control was allowed from the mid-1990s; 

• Contain or refer to any testimonial or endorsement which is obsolete or misleading, or which is not genuine and related to the personal experience over a reasonable period of the person giving it; 

• Portray or refer to living persons without their express prior permission (although there are exceptions, as in the case of advertisements for books, films and the like, and in advertisements using crowd shots and occasions when the reference does not constitute an unreasonable interference with the privacy of the subject); 

• Show or refer to dangerous practices or manifest a disregard for safety, especially when the advertising material is directed towards or depicts children; 

• If addressed to children, contain anything which might harm them physically, mentally or morally, or which exploits their credulity, lack of experience, knowledge or sense of loyalty; 

• Contain any reference to a 'guarantee' or 'warranty' which takes away rights that would have been enjoyed by consumers but for the guarantee, or which undertakes merely to refund the price of a product within a brief trial period to dissatisfied purchasers;

• Contain the words 'guarantee' or 'warranty', or similar words, unless the full terms of the guarantee, together with remedial action open to the consumer, are clearly stated in the advertisement, or are available to the consumer in writing at the point of sale or with the product; 

• Use the word 'new' in relation to an entirely new product or service, or a materially changed or improved product or service, for more than one year; 

• Claim a reduction in price unless satisfactory documentary evidence is provided to the media in which the advertisement is placed, proving that there has in fact been a price reduction.

Sections of the ASA code also cover mail-order advertising (adverts for products or services that are intended to be sold or provided directly to the home of the consumer, sight unseen). Advertisers undertake to provide the products advertised at the prices stated in the advertisement within 28 days, and to provide details of their physical address. An example of this type of misleading advertising is a company that advertises its product on television or radio and when consumers place orders, is unable to supply. The ASA would then request that the television or radio station discontinue screening the advert. (See mail order; voetstoots.) Any verbal agreements made do not fall under the ASA's code and they can be of no assistance.

If you believe that an advertisement is in breach of the ASA's code, send a clipping or full details of the advertisement to the ASA at PO Box 41555, Craighall 2024. The authority will then investigate and, if necessary, take action. The organisation cannot prohibit business practices, it can only regulate the content of advertising. How-ever, it may refer complaints to a business practices committee, which may then consider the complaint in the light of a harmful business practice.

The Harmful Business Practices Act, 1988, prohibits any person from:

• Publishing or displaying any advertisement which is false or misleading in any material respects; or 

• Making, in connection with the sale or lease of goods or the provision of a service, any false or misleading statement or representation in regard to the nature, properties, advantages or uses of the goods or service being offered or the manner in which the conditions upon which or the prices at which the goods or service may be obtained.

The Harmful Business Practices Act also prohibits any seller or lessor of goods and any person offering a service from falsely or misleadingly indicating a reduction in the price at which the goods or service may be obtained, or falsely or misleadingly offer the goods or service for less than the actual price charged. Traders found guilty of contravening any of these provisions may be fined up to R2000 or be imprisoned for up to two years, or both.