Posted 03 June 2016
As previously posted here, Herbex took the ASA to the High Court arguing that the ASA has no jurisdiction over the claims Herbex made for their products.
Acting Judge D T v R Du Plessis ruled in Herbex’s favour. This should be contrasted with the ruling made by the highly respected former Constitutional Court Judge, Kate O’Regan, who considered the very same argument in a Final Appeal Committee (FAC) ruling. Herbex argued, among other, that although they are members of the HPA, and although the HPA are members of the ASA, that Herbex are not members of the ASA – and therefore that the ASA has no jurisdiction over their false claims.
Lawyers for the HPA joined those of Herbex in the latter’s appeal. Usually the FAC comprises 3 additional members, but because of the gravity of the appeal, this was increased to 5, and included Diane Terblanche, Executive Chairperson at National Consumer Tribunal (an attorney and previously with the Competition Commission) and Dimakatso Qocha (Deputy Executive Director for the National Association of Broadcasters (NAB).) Judge Kate O’Regan and the FAC also considered the issue of whether the ASA has jurisdiction over non-members.
The Herbex High Court ruling is available here.
The Herbex-FAC ruling is available here.
The ASA have released a media release, giving notice of their intention to appeal the ruling. In the media release, the ASA explains why they consider that they do have jurisdiction over advertising.
Advertising Standards Authority lodges application for leave to appeal against the judgment of the High Court in the Herbex matter.
JOHANNESBURG, June 2nd, 2016 – The Advertising Standards Authority of South Africa (ASA) is a self-regulatory independent body, established by the marketing, communications and media industries and mandated by those members to regulate against unfair and misleading advertising which could compromise consumers and impact unfairly on competitors. The ASA has been safeguarding consumers interests and protecting freedom of commercial speech since 1968 and continues to enforce, adopt and uphold its Code of Advertising Practice in an impartial, objective and relevant manner.
Recently, there have been a number of unsubstantiated reports in the South African media criticising the ASA’s role in the marketing and communications sector, claiming that the ASA board is not representative of the broader industry, and even more concerning, promoting the misguided idea that ‘regulation would be better served by self-regulation’ (sic).
The ASA board is comprised of nominated representatives of each of the core members – the media, marketers and the advertising profession. It is therefore unclear how the board’s representation can be considered unrepresentative of the broader industry.
The anti-ASA rhetoric was dialled up after the recent ruling of the Gauteng High Court against the ASA in favour of Herbex. Nkwenkwe Nkomo, the Chair of ASA, says “On 23 May 2016 the Advertising Standards Authority lodged an application for leave to appeal against the judgment of the High Court in the Herbex matter. The Adverting Standards Authority is of the view that the High Court Order is mistaken, and that the Supreme Court of Appeal may overturn the Order of the High Court. Furthermore, the decision by the Gauteng High Court directly challenges the system of self-regulation upon which the independence of the advertising industry in South Africa is based.
He goes on to say, “Only government has the power to regulate. The ASA is already an industry supported self-regulatory body. The Code of Advertising Practice is the ASA’s guiding document. It is based on the International Code of Advertising Practice, prepared by the International Chamber of Commerce and accepted worldwide as the basis for domestic systems of self-regulation. The Code has been drawn up by representatives of the local marketing and communication industries and is amended from time to time to meet the changing needs of the local industry and South African society.
The ASA enjoys the full support of the Marketing Association of South Africa (MASA), the Association for Communication and Advertising (ACA), the National Association of Broadcasters (NAB), the Print and Digital Media organisations of South Africa and government. Its mission remains unchanged to this day; that of protecting the South African consumer from misrepresentation and misleading claims in advertising. In addition, it has served all of its stakeholders – consumers, marketers, advertising professionals, media and the state – extremely well in a self-regulatory environment.”
Speaking to criticism from a media source that the self-regulation process stifles creativity within the industry, he maintains, “This is unfounded. During the period in which South African advertising punched well above its weight at international creativity awards, the ASA was operating in precisely the same way. Therefore it cannot be the fault of the ASA if our advertising profession is not as competitive creatively as it once was.”
The ASA’s mission is to consult with and advise government, statutory, provincial, civic and other authorities, and to do anything else that will help it achieve its stated objectives.
The vast majority of marketers, the media and advertising and communications agencies are fully behind the Code and the spirit of the role fulfilled by the ASA. Any dissention in support for the ASA Code can only raise questions as to the intent of those who seek to be free of the reasonable regulation of truth and fairness in advertising.
The ASA will continue to discharge its mandate under the purview of its Code of Conduct, and will defend the rights of all stakeholders in accordance with this mandate. It has the support of the broader industry and within the boundaries of a robust and highly competitive advertising environment, the ASA will continue to strive to protect the South African public and marketers from misrepresentation and misleading claims.
ASA Board Director
(011) 880 2616