Advertising Code of Practice

Gail Schimmel

The Advertising Regulatory Board recently passed a number of significant changes to the Code of Advertising Practice. Practitioners need to be aware of these changes, which particularly impact the procedure. The correct version of the Code is the one on the website at www.arb.org.za , and the changes outlined in this article are not exhaustive, so regard should always be hard to the actual Code.

Some general changes are:

• The references to “ASA” have been changed to “ARB”.
• All the Guidelines have been removed.
• Appendix A (Alcohol) and Appendix B (Cosmetics) have been completely updated in line with the changes brought by their respective industry bodies.
• Certain appendixes have been removed.
• The Procedural Guide has been tightened and rearranged.

Practitioners should particularly note the following procedural changes:

• Whereas before in a Final Appeal, the Appellant had 20 days to appeal and the Respondent had 10 days to respond, both parties now have 20 days. The relevant change is to Clause 12.8 of the Procedural Guide.

• Clause 8.2.2 of the Procedural Guide now allows that ALL responses are due within 5 days. This is a change from 3 days for competitor matters and 2 days for substantiation.

• Clause 7.3 of the Procedural Guide now offers important clarity on the issue of the ARB’s role in relation to regulations: “Nothing in this clause, or in Clause 3.3 of Section II, must be read as implying that the ARB may seek to enforce regulations or laws. This task falls on the relevant regulator. The ARB may only enforce the Code.”

• Clause 8.5.1 of the Procedural Guide now formally empowers the Directorate to “[a]ttempt to resolve the matter between the parties without the need for a formal decision”.

• In response to a spate of interlocutory procedures being invoked in recent matters, the following clauses have been added to the Procedural Guide:

“9.13 While the parties are entitled to bring any interlocutory applications appropriate in order to enforce their rights, parties are reminded that self-regulation is, by its nature, intended to be quick, cheap, and solution-driven. Parties who lodge interlocutory applications merely to frustrate the process are acting contrary to the spirit of the Code. Parties may, at the discretion of the Chair of the AAC or FAC, as relevant, be penalised for this behavior by forfeiting the refundable portion of their appeal fee.

9.14 Interlocutory decisions made by the Head of the Directorate or the Chair of the AAC are not appealable.”

• Clarification is given as to the process on confidential material as set out in Clause 5 of the Procedural Guide:

“5.4 Documentation which does not meet or follow the above criteria and processes will not be regarded as confidential. Parties are alerted that all correspondence with the ARB that does not fall within the above criteria may, at any time and at the discretion of the ARB, be shared with the other party.

5.5 Parties are alerted that the decisions of the ARB are published on the ARB website in the interests of transparency. This will include the name of the complainant(s) and the Advertiser.”

• The deadlines in Clause 15.3 have been clarified with regard to the removal of advertising already in the market. The deadline for the removal of internet advertising has also been shortened.
• Lastly, a new clause has been added to Section II – Clause 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.”

Would you like to have input on the next version of the Code?

EMAIL: info@arb.org.za with your proposals

Gail Schimmel (BA Psych (Hon) LLB LLM) is an admitted attorney and the CEO of the Advertising Regulatory Board. She has also published 5 novels, as well as Juta’s invaluable guide for the advertising practitioner – Advertising Law.

Click here to download the PDF version. 

Disclaimer:

 This article is provided for informational purposes only and not for the purpose of providing legal advice. The views expressed herein do not necessarily reflect the views of Juta & Company (Pty) Ltd. Juta and Company (Pty) Ltd are not liable for any damage arising should the information be followed without proper due process being undertaken by the reader. Before making any decision or taking any action based on the information contained herein, which decision or action might affect your personal finances or business, you should consult a qualified professional advisor.