Advertising Regulatory Board (ARB)

The advertising industry in South Africa is mainly self-regulated, with advertising content being governed by the provisions of the Advertising Regulatory Board’s Code of Advertising Practice (the “ARB Code”). This is based largely on the International Code of Advertising Practice. Only members of the ARB are obliged to adhere to the ARB Code; however, most advertisers, advertising agencies and media sources that carry advertising are members of the ARB. In addition, pursuant to a challenge to the ARB’s jurisdiction, the Constitutional Court, South Africa’s highest court, previously found that while the ARB’s rulings cannot bind non-members, the ARB may still make rulings in respect of the advertising of non-members, for the benefit of the industry as a whole and for its own members.

The ARB Code contains general principles concerning advertising, as well as specific regulations relating to certain types of advertising and products.

Consumer Protection Act

The Consumer Protection Act guarantees the right to fair and responsible marketing. The Act prohibits marketing that is fraudulent, false, misleading or discriminatory. The Consumer Protection Act also strictly regulates certain types of marketing, such as bait marketing, negative option marketing and direct marketing.

The Copyright Act

This act prohibits the unauthorised reproduction or adaptation of copyright works, including in advertising.

The Trade Marks Act

This Act prohibits the unauthorised use, in the course of trade, by a third party, of a mark that is identical or confusingly similar to a registered trade mark, in relation to goods which are identical or similar to the goods and services for which the trade mark is registered. It also prohibits trade mark dilution, ie, the use of a mark similar to a registered, well-known mark in relation to any goods or services, where the use of such mark is likely to take unfair advantage of, or be detrimental to, the distinctive character and repute of the well-known mark.

Common Law

In terms of common law, a person may not misrepresent to the public that their product is that of another, or is associated with another, by, for example, using a mark, get-up or packaging that is similar to that of the other person. Doing so constitutes passing-off, a form of unlawful competition. The making of misleading statements in advertising may also constitute unlawful competition.

Other Legislation

There is an array of other legislation that concerns advertising, whether directly or indirectly. This includes legislation concerning the labelling and marketing of specific products (for example, the Foodstuffs, Cosmetics and Disinfectants Act, the Agricultural Products Standards Act and the Liquor Act) and legislation such as the Protection of Personal Information Act.

The ARB

The ARB is responsible for enforcing the provisions of the ARB Code. It will not act of its own accord, however, and responds only to complaints lodged with it by consumers or competitors.

There are three levels of decision making within the ARB.

The Directorate:

• The Directorate has primary responsibility for ensuring compliance with the ARB Code and must consider all possible breaches which are brought to its attention by a formal complaint.
• On receipt of the written representations by the parties and depending on the urgency, complexity, and novelty of the subject matter of the complaint, the Directorate will, at its own discretion:
1. attempt to resolve the natter without the need for a formal decision;
2. make a ruling on the complaint; or
3. refer the complaint to the appropriate committee.

• Where the Directorate rules on a complaint, it will give written reasons for its ruling.
• Any party who is aggrieved by a ruling of the Directorate may appeal to the Advertising Appeals Committee.

Advertising Appeals Committee:

• The Advertising Appeals Committee will consider and rule on all complaints either referred to it by the Directorate or on appeal by any party who feels aggrieved by a ruling made by the Directorate.
• Any party who feels aggrieved by a ruling of the Advertising Appeals Committee has the right to appeal to the Final Appeal Committee against such ruling.

The Final Appeal Committee:

• The Final Appeal Committee may, at its discretion, co-opt up to four persons who have expertise in the subject matter of a specific complaint, or to serve for such period as the Final Appeal Committee may decide. In practice, the Final Appeal Committee is made up of both industry experts and lawyers.
• The Final Appeal Committee will, where possible, deliver its written ruling within two weeks of consideration of the appeal.
• The Final Appeal Committee may make a final ruling on the advertising in question or may refer any matter back to the Advertising Appeals Committee for reconsideration or for such action as the Final Appeal Committee may determine.

Sanctions

The decision-making bodies of the ARB may impose the following sanctions:

• order the withdrawal of an advertisement in its current format;
• direct the advertiser to submit a proposed amendment to its advertisement, the original advertisement and relevant ARB ruling to the Association for Communication and Advertising’s Advisory Service for pre-publication advice;
• direct the advertiser to submit all future advertising to the ACA Advisory Service, at the advertiser’s cost, prior to publication thereof (this sanction is usually only imposed if more than one adverse ruling has been made against the respondent in a period of 12 months, and the sanction is normally imposed for a period of six months);
• adverse publicity, including the publication of the names of defaulters;
• order the respondent to publish a summarised version of the ruling as proposed by the ARB, in all or some of the media in which the advertising complained of appeared or media considered appropriate by the ARB, and the cost of such publication will be for the respondent; and
• where a person against whom a ruling has been made fails to adhere to the ruling, the ARB may impose on the defaulting person any of the sanctions mentioned above, either in addition to, or as a substitute for, any sanction previously imposed on such person.

The High Court of South Africa

Appropriate cases, such as breaches of the Trade Marks Act, Copyright Act or common law may be heard by the relevant division of the High Court of South Africa with jurisdiction over the matter.

Remedies available in such matters include:

• an interdict (injunction) to restrain the conduct in question;
• an award of damages;
• in lieu of damages, an amount based on reasonable royalties (in terms of the Trade Marks Act and Copyright Act only);
• delivery up of infringing materials; and
• any order that the judge finds is fair and equitable in an open and democratic society.

The National Consumer Commission

It is possible for consumers to lodge complaints with the National Consumer Commission (the NCC) in respect of alleged contraventions of the Consumer Protection Act. The NCC is also responsible for monitoring the consumer market to ensure that prohibited conduct and offences are prevented, detected and/or prosecuted.

The NCC can, inter alia, issue and enforce compliance notices and refer matters to its Tribunal or other Tribunals (eg, the Competition Commission or, in respect of offences, the National Prosecuting Authority). It has wide powers which include issuing summons, search and seizure powers, ordering a supplier to alter or discontinue any conduct that is inconsistent with the Consumer Protection Act; imposing fines and penalties and more.

Department of Health

The Department of Health (a department of the South African government) is responsible for enforcing the regulations made in terms of the Foodstuffs, Cosmetics and Disinfectants Act and can inspect and search premises, demand information, investigate and seize goods which are labelled contrary to the regulations.

Department of Agriculture, Forestry and Fisheries

This department is responsible for enforcing regulations in terms of the Agricultural Products Standards Act.

The Information Regulator

The information regulator is, among others, empowered to monitor and enforce compliance by public and private bodies with the provisions of the Promotion of Access to Information Act, 2000 (Act 2 of 2000), and the Protection of Personal Information Act, 2013 (Act 4 of 2013).

Any person or entity can be held liable for deceptive advertising if the laws and regulations governing advertising in South Africa are not adhered to.

The ARB Code is intended to cover advertising in all its diverse forms. “Advertisement” is broadly defined in the ARB Code as: “any visual or oral communication, representation, reference or notification of any kind:

• which is intended to promote the sale, leasing or use of any goods or services; or
• which appeals for or promotes the support of any cause.”

This could include:

• television;
• radio;
• magazines and newspapers;
• direct mail;
• websites;
• social media;
• packaging;
• posters; and
• billboards.

Pre-approval of advertising is generally not required, with the exception of advertisements for certain industries. For example, advertisements for stock remedies must conform to the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act of 1947 and must be submitted to the Department of Agriculture for approval.

The unauthorised use in advertising of another’s intellectual property, including trade marks and copyright works, would constitute trade mark or copyright infringement and would also be contrary to the ARB Code which requires advertisements to be lawful.

The ARB Code also provides that advertisements may not take advantage of the advertising goodwill relating to the trade name or symbol of the product or service of another, or the advertising goodwill relating to another party’s advertising campaign or advertising property, without that party’s prior written permission.

Incidental or background use of another’s trade mark, in a manner that is unlikely to cause confusion or create a connection with the trade mark owner, may be acceptable.

Using an individual’s name, picture, voice or likeness in advertising without authority may infringe the individual’s right to privacy in terms of the common law. The ARB Code furthermore provides that advertisements should not portray or refer to, by whatever means, any living persons, unless their express prior permission has been obtained. There are some exceptions to this, such as the use of crowd or background shots.

As mentioned above, South Africa has a very successful system of advertising self-regulation which manifests itself in the form of the ARB. The ARB Code covers virtually all forms of advertising, including traditional radio, television, online and print advertisements, but also “point-of-sale” materials, menus, labels, letterheads, circulars, stickers and product packaging.

Pursuant to a complaint by a competitor or consumer, the ARB Directorate, Advertising Industry Tribunal and/or Final Appeal Committee may impose the following sanctions where an advertisement is found to be in breach of the ARB Code:

• withdrawal of an advertisement in its current format;
• directing the advertiser to submit the proposed amendment, original advertisement and relevant ARB ruling to the ACA Advisory Service for pre-publication advice;
• directing the respondent to submit all future advertising to the ACA Advisory Service, at the cost of the respondent, prior to publication (this sanction is only imposed if more than one adverse ruling against the respondent has been made by the ARB in a period of 12 months and if certain additional aggravating factors are present);
• adverse publicity, including the publication of the names of defaulters;
• ordering the respondent to publish a summarised version of the ruling in all or some of the media in which the advertising complained of appeared or media considered appropriate by the ARB at the cost of the respondent; or
• referral to a disciplinary hearing.

Once a ruling has been given by the ARB, it is the complainant’s responsibility to monitor whether or not the ruling has been adhered to. Should the respondent ignore a ruling, the complainant may lodge a breach complaint with the ARB. If the respondent still fails to comply, the ARB will issue an “Ad Alert” to its members (including newspapers, magazines, radio, television and the Printing Industries Federation) warning them to withdraw the advertisement and not accept future advertising from the advertiser. The ARB is not empowered to enforce its rulings beyond this, but nothing in the Code prevents an aggrieved party from approaching the High Court for relief.

A consumer complaint may be lodged with the ARB by a member of the public or by entities or organisations regarding consumer-related matters concerning compliance with the ARB Code. The remedies are the same as those set out in 1.7 Self-Regulatory Authorities. Consumer complaints are dealt with free of charge.

If the advertising falls foul of the Consumer Protection Act, a consumer may also lodge a complaint with the National Consumer Commission.

Consumers may also file complaints with the Broadcasting Complaints Commission South Africa if the matter concerns content on television or radio broadcasts or the Independent Communications Authority South Africa (ICASA) if the complaint is against any person licensed by ICASA to provide communications services such as broadcasting, telecommunications, internet or postal services.

If the advertisement has caused damage to a consumer, it may also have grounds to approach a court for relief on general delictual grounds.

A trend that appears to have been developing in South Africa is increased governmental focus on regulations that aim to prevent deceptive advertising. This has manifested in, for example, the recent Draft Regulations on Food Labeling and Advertising published in April 2023. These regulations propose the introduction of significant changes, especially regarding the labelling of pre-packaged food items.

Some of the key points and potential impacts include the introduction of mandatory warning labels regarding foodstuffs containing added saturated fat, sugars and sodium above a certain threshold, known as Front of Pack Labelling (FOPL). The FOPL must be placed on the front/main panel of the package, specifically in the top right-hand corner, and the size could cover up to 25% of the front of the package, depending on the number of symbols required.

Packages with FOPL cannot feature celebrities, sports stars, cartoon characters, puppets, or computer animations. This aims to reduce the appeal of such products to children and potentially discourage unhealthy eating habits which are allegedly influenced by these marketing tactics.

Businesses may incur costs related to updating packaging, redesigning labels, and ensuring compliance with the new regulations.

As these are draft regulations, they are not yet in force, but advertisers are urged to stay informed about their progress and prepare for potential changes by reviewing their products’ formulations and packaging.

Similarly, there appears to have been an increased focus on strict enforcement of existing regulations. For example, the plant-based food industry recently experienced disruption in South Africa when the Department of Agriculture took it to task for using descriptive terms such as “burger”, “nugget” and “sausage” in relation to meat analogue products (ie, foodstuffs that approximate the texture, flavour and appearance of a type of meat). The Department and the meat industry claimed that the use of these terms was misleading to consumer and moved to seize plant-based meat alternatives which used these terms. That decision was subsequently overturned by the Johannesburg High Court, but discussions about best labelling practices for these products are ongoing.

The ARB Code provides that advertising may not be offensive to public or sectoral values and sensitivities, and no gender stereotyping or negative gender portrayal is permitted, unless the advertising is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. These principles are also enshrined in South Africa’s Constitution and the Bill of Rights.

Freedom of expression and association is recognised, and the ARB recognises that the hypothetical, reasonable consumer is not hyper-sensitive nor hyper-critical. Advertisements are “judged” in the context of an open and democratic society where consideration is given to the context, medium, likely audience, the nature of the product or service, degree of social concern, and public interest.

With its diverse culture, South Africa has varying and sometimes conflicting cultural norms which also intersect with issues of race, gender and religion. South Africa also has eleven official languages. South Africa’s political past of racial segregation and the long-standing effects of apartheid means that issues of racial discrimination are of significant importance. All of this makes for a complex advertising arena.

Advertisers are advised to seek advice from local practitioners on cultural and language concerns prior to advertising.

There have been no recent changes to the political climate or political administration in South Africa that have impacted the regulation of advertising or the enforcement of advertising regulations.

The ARB Code provides that 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.

The Consumer Protection Act also provides that suppliers may not market goods or services in a manner that is false, misleading or deceptive with regard to, inter alia, the nature, properties, price or advantages of the goods and services and also the sponsoring of any event.

The ARB Code requires documentary evidence to support all claims that are capable of objective substantiation.

Certain types of claims, such as puffery and hyperbole, are not capable of objective substantiation and are not, therefore, required to comply with the provisions relating to documentary evidence.

Puffery, value judgments, matters of opinion or subjective assessments are permitted, provided that it is clear that what is being expressed is an opinion and there is no likelihood that the opinion will mislead consumers about any aspect of a product or service which is capable of being objectively assessed in the light of generally accepted standards.

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

The ARB Code requires that, before advertising is published, advertisers must have documentary evidence to support all claims that are capable of objective substantiation. Such documentary evidence must be up to date, current, and have market relevance.

If survey data is used as documentary evidence, then it is required that:

• the survey must emanate from an entity approved by, or acceptable to, the Southern African Market Research Association; and
• the accuracy of the claims based on the survey must be confirmed by an entity approved by, or acceptable to, the Southern African Market Research Association.

Other types of documentary evidence must emanate from or be evaluated by a person/entity, which is independent, credible, and an expert in the particular field to which the claims relate and be acceptable to the ARB.

Finally, claims based on research conducted by publications must clearly state the source in advertising.

The Code of Ethics and Standards of Practice of the Direct Marketing Association provide that product demonstrations must be carried out safely by trained personnel. The information provided directly to consumers by demonstrators may not be misleading and the representatives may not employ unreasonably aggressive sales tactics.

The ARB Code states that:

• advertisements may not contain or refer to any testimonial or endorsement unless it is genuine and related to the personal experience over a reasonable period of the person giving it; and
• testimonials may not contain any statement or implication that contravenes the provisions of the ARB Code and should not be misleading.

Testimonials should not contain any claims to efficacy which cannot justifiably be attributed to the use of the product, and any specific or measurable results claimed should be fairly presented. Where “before” and “after” claims are made, they should be capable of substantiation, and expressed and illustrated in such a way as to permit a fair comparison to be made.

Offers to consumers, by way of direct market advertising, must contain all the information that may be necessary for a reasonable consumer or business to make an informed purchase decision.

Generally, the following details must be disclosed:

• the exact nature of the product or service that is offered;
• the price, including all additional charges, such as delivery or handling costs;
• any other order-related charges, eg, handling charges or services charges;
• the terms of payment;
• any obligations on the consumer upon placing an order;
• delivery arrangements, including shipping terms and delivery times;
• penalties for late payment;
• return and cancellation policies and procedures;
• substitution policies;
• guarantees and warranties; and
• the contact details of the advertiser.

Advertisements may not 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.

“Discrimination” means:

• advertising that directly or indirectly imposes burdens, obligations or disadvantages on, or withholds benefits, opportunities or advantages from a particular person or group on the grounds of race, gender, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth, or any other analogous ground; and
• advertising where a person or group is negatively stereotyped or portrayed in a manner that exploits or demeans, or restricts and entrenches their role in society.

Advertising may not be offensive to public or sectoral values and sensitivities, and no gender stereotyping or negative gender portrayal is permitted, unless the advertising is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

Appendix G of the ARB Code contains specific laws and regulations that apply to environmental claims which are defined as 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.

All environmental claims and statements made in advertising should provide accurate information, meaningful to the consumer and based on recognised scientific standards and principles.

Advertisements should not contain vague, incomplete or irrelevant statements about environmental matters, nor should they impair public confidence in the efforts made by the business community to improve its ecological standards.

Recyclable

Advertisements may not by using the Mobius Loop symbol or in any other way claim that a product is recyclable, merely because it is technically capable of being recycled, unless facilities, which are reasonably accessible, exist for collection and recycling.

Degradable Claims

No advertisement may make claims about the degradability of packaging material unless the claim can be substantiated.

Advertising claims about the degradability of products disposed of through the sewage systems may only be made if the by-products of degradation and the product in question do not contain substances which are known to be damaging either to the environment or the sewage collection and treatment facilities.

Ozone Friendly Claims

No product or packaging may claim to be “ozone friendly” if at any point in its manufacture, packaging, use or degradation it uses or is likely to emit chlorofluorocarbons.

Advertisements which claim to indicate in any other way that a product does not contain any substance which will or may have an adverse or detrimental effect on the ozonosphere (“ozone layer”) shall not be acceptable unless that the product falls within the class of product:

• in which choloroflorocarbons (“freons”) are or have in the past commonly been used as inert dispensing agents or as solvents or refrigerants; or
• which is generally perceived by the consumer public as being a product which contains such substances.

There are no specific laws or guidelines related to “dark patterns” in advertising. However, and depending on the specific nature of the conduct, it may contravene other legislation including the Consumer Protection Act or Protection of Personal Information Act.

Advertising to Children in Terms of the ARB Code

The ARB Code defines children as persons who are under the age of 18, or who are portrayed as, or who appear to be, under the age of 18.

Advertising aimed at, featuring or likely to influence children will be interpreted narrowly, as children would be likely to attach a more literal meaning to advertising because of the credulity and lack of experience of a child.

Children may not be portrayed as sexually appealing, provocative, or in any manner that involves any form of sexual innuendo. Advertisements which encourage children to enter strange places, converse with strangers or engage in dangerous activities (for example, playing in the road, leaning out of buildings, using matches or flammable substances, etc) are also contrary to the ARB Code.

Alcohol Advertising

Advertisements with alcohol may not be transmitted in the commercial breaks immediately before, during or immediately after children’s programmes on television or radio.

Direct Commercial Communications regarding alcohol may not be levelled at persons under the legal drinking age and must comply with current regulations to safeguard consumer privacy, ensure data protection, and enable consumers to opt out of future direct communications. In the case of an underage person unintentionally receiving direct communications, parents and/or legal guardians may request the opt-out on their children’s behalf.

Direct Marketing Advertising

The Direct Marketing Advertising Appendix to the ARB Code contains a host of provisions aimed at direct marketing to children.

Marketers must recognise that children and minors are not adults and that not all marketing techniques are appropriate for them.

They must use discretion and sensitivity in marketing to children and minors, to address the age, knowledge, sophistication and maturity levels of their intended audience. Marketers should exercise caution that they do not take advantage of or exploit children and minors, particularly the following.

• Marketers must not portray sexual behaviour or violence that is inconsistent with community or industry standards.
• Marketers must respect the parent/guardian–child relationship and must not encourage the child or minor to exclude parents or guardians from a purchase decision.
• Marketers must not solicit, collect or knowingly use personal information from children and minors as a means of acquiring further household information.

Consent

Marketing interactions with children and minors are governed by the following guidelines concerning consent.

• All marketing interactions directed to children (such as contests) that include the collection, transfer and requests for personal information require the express consent of the child’s parent or guardian.
• Where the child, parent or guardian withdraws or declines permission to collect, use or disclose a child’s information, marketers must immediately delete all such information from their database.
• Marketers must obtain the express consent from a minor for the collection and use of their personal and/or contact information.
• Marketers must obtain the express consent of the parent or guardian prior to the disclosure of a child’s or minors contact information to a third party.
• Where the minor, parent or guardian withdraws or declines permission to collect, use or disclose a minors information, marketers must immediately delete all such information from their database.

Credulity

• Marketing to children and minors must not exploit their credulity, lack of experience or sense of loyalty.
• Marketing communications to children and minors should not understate the degree of skill or age level generally required to use or enjoy the product or service.
• Special care should be taken to ensure that direct marketing communications do not mislead children and minors as to the true size, value, nature, durability and performance of the product or service:
1. If extra items are needed to use it (eg, batteries) or to produce the result shown or described (eg, paint), this should be made clear.
2. A product or service that is part of a series should be clearly indicated, as should the method of acquiring the series.
3. Where results of the product or service usage are shown or described, it should represent what is reasonably attainable by the average child or minor in the age range for which the product or service is intended.
• Marketing to children and minors must not unduly exploit their impressionability, or susceptibility to peer or social pressures. Marketers must not imply that possession or use of a product or service will make its owner superior to others or that without it the individual will be open to ridicule or contempt.
• Price indication should not be such as to lead children and minors to an unreal perception of the true value of the product, for instance by using the word “only”. Nothing should imply that the product or service is immediately within reach of every family budget.

Age-Appropriate Language

When marketing to children, marketing communications must be age appropriate and presented in simple language, easily understood by children. Marketers must not knowingly accept an order from a child or minor without a parent or guardian’s express consent. Marketers must not pressure a child or minor to urge their parents or guardians to purchase a product or service. Marketers must be aware that transactions with minors may not be legally enforceable against the minor, or his or her parent or guardian.

The ARB Code requires advertisements to be clearly distinguishable as such in whatever form and medium they are used (for example, by using the words “ADVERTISEMENT” or “ADVERTISEMENT SUPPLEMENT” in print media or labels such as “Sponsored”, “Promoted” or “Ad” on digital platforms, but there is no requirement that advertising clearly indicates who the advertiser or sponsor is.

The ARB Code contains an entire appendix, Appendix K, which was introduced to regulate Influencer Marketing.

Some types of claims are subject to specific rules or regulations. For example, products should not be described as “free” where there is any cost to the consumer, other than the actual cost of any delivery, freight or postage.

Where a claim is made that, if one product is purchased, another product will be provided “free”, the advertiser should be able to show that he will not be able immediately and directly to recover the cost of supplying the “free” product whether in whole or in part.

In particular, advertisers should in these circumstances make no attempt to recover the cost to them of the product by such methods as the imposition of packaging and handling charges, the inflation of the true cost of delivery, freight or postage, an increase in the usual price of the product with which the “free” product is offered, a reduction in its quality, or otherwise.

A trial may be described as “free”, although the consumer is expected to pay the cost of returning the goods, provided that the advertiser has made clear his obligation to do so. Advertisements offering “free” goods must indicate if such goods are only received subject to purchase.

“Up to ...” and “from ...” claims are also regulated. The ARB Code provides that claims, whether as to prices or performance, which use formulas such as “up to 10 kilometres per litre” or “prices from as low as R5” are not acceptable where there is a likelihood of the consumer being misled as to the availability of the benefits offered. Such claims should not be used where the price or other advantage claimed bears no relation to the prevailing level of prices or benefits, and in particular where it does not apply to the goods or services actually advertised or to more than an insignificant proportion of them.

The word “new” or words implying “new” may only be used in media, packaging, posters, billboards, etc for any entirely new product or service marketed or sold during a given 12-month period. It may also be used to advertise any change or improvement to a product, service or package, provided that the change or improvement is material and can be substantiated and defined.

Use of words such as “health”, “healthy”, “wholesome” and “nutritious” are prohibited in respect of certain foodstuffs in terms of the regulations to the Foodstuffs, Disinfectants and Cosmetics Act and the proposed new regulations may extend this further to words such as “superfood”, “smart” or “intelligent”. There are also strict guidelines for the use of words such as “Fresh”, “Natural”, “Traditional”, “Pure”, “Original”, “Home-made”, “Quality” and other similar words. Expert advice is always recommended before a label is used.

The ARB Code provides that comparative advertising is permitted provided that:

• all legal requirements are adhered to (specifically the Trade Marks Act that protects against trade mark infringement);
• only facts capable of substantiation are used;
• one or more material, relevant, objectively determinable and verifiable claim must be made;
• the claims are not misleading or confusing;
• it does not infringe the advertising goodwill of another or disparage another;
• the facts or criteria used are fairly chosen;
• products or services compared must have the same or similar characteristics and purposes; and
• the advertiser accepts responsibility for the accuracy of the research and claims.

The guiding principle in all comparisons is that products and/or services should be promoted on their own merits, and not on the demerits of competitive products.

Previously, South African courts have held that comparative brand advertising, ie using a competitor’s trade mark in a comparative advertisement, constitutes direct trade mark infringement. There is a view that recent case law has, however, changed this position and that use of a trade mark in comparative advertising does not constitute “trade mark use” as required for direct trade mark infringement in the Trade Marks Act, provided it does not cause deception or confusion.

There is also a view that comparative advertising may nevertheless constitute infringement in the form of trade mark dilution if the use of the mark would be likely to take unfair advantage of, or be detrimental to, the distinctive character or the repute of a registered and well-known trade mark. The position is not entirely clear and, as such, little comparative brand advertising takes place in South Africa.

Competitors can challenge claims made by a competitor by filing a complaint with the ARB, and may obtain such remedies, as described in 1.7 Self-Regulatory Authorities. Alternatively, if a competitor is making misleading claims, these may also amount to unlawful competition and the competitor may seek an interdict and related relief from the High Court.

South Africa has various laws in place which regulate ambush marketing. Besides the traditional remedies of trade mark infringement, unlawful competition and copyright infringement, which protect against ambush marketing by association, the Merchandise Marks Act 17 of 1941 (as amended) contains provisions for declaring certain marks as “prohibited” and for declaring certain events as “protected”.

If an event is declared a “protected event”, third parties are prohibited from using their own trade marks, without authority from the organiser of the event, in a manner calculated to achieve publicity for the trade mark in question and thereby to derive special promotional benefit from the event. This includes any visual or audible use of their trade marks which in any way, whether directly or indirectly, is intended to be brought into association with or to allude to any event. The broad wording of the section is intended to provide for those parties who commit ambush marketing by intrusion, in addition to those committing ambush marketing by association.

Contravening either the “protected event” or “prohibited mark” provisions of the Merchandise Marks Act are criminal offences.

Currently, South Africa has no legislation that relates specifically to social media, but the ARB Code has introduced Appendix K with principles related to social media marketing. The principles are centred largely around full transparency regarding whether content is part of a social media campaign or purely organic content. In addition, marketers should pay particular attention to ensuring that paid social media advertising is obviously identifiable as such. It is also a requirement that influencers have a written contract detailing their engagement and remuneration and that they disclose their involvement with the brand/marketer, such as whether they were paid for the post or provided with goods or services in exchange for the post.

Appendix K also provides that Social Media Advertising must not contain deceptive, false or misleading content, including deceptive claims, offers or business practices (by commission or omission). Messaging should be responsible and accurate. Social Media parody accounts should be clearly declared within the account’s description or bio. It should clearly indicate that the user is not affiliated with the subject of the account, including, for example, by incorporating a word such as (but not limited to) “parody”, “fake”, “fan” or “commentary”, and be done in such a way that would be reasonably understood by the intended audience.

For the rest, advertising and marketing through social media are subject to the same rules and regulations as all advertising and marketing.

In addition, the Electronic Communications and Transactions Act of 2002 applies to all forms of electronic communication. Given that advertising via social media platforms clearly constitutes a form of electronic communication, advertisers must give due consideration to, and comply with, the relevant provisions of this Act.

The Consumer Protection Act, ARB Code and other advertising related legislation currently makes no explicit provision for advertising claims made in user generated content. However, a recent court judgment dealt with malicious statements that were made on an organisation’s Facebook page. The court held that the owner of the page had to exercise control over its Facebook wall. The judgment implies that the owner of a Facebook page must monitor posts on its wall. As such, if an advertiser is aware of false or malicious statements on its social media channels, it should take steps to rectify the situation.

As mentioned in 4.1 Special Rules Applicable to Social Media, advertisers must disclose material connections, such as sponsorships or paid partnerships, online and in social media, including in space-constrained formats.

South African law pertaining to advertising and marketing in a social media and user generated contexts is currently fairly underdeveloped. Appendix K to the ARB Code is the only piece of regulation for Social Media Marketing in South Africa and is discussed in 4.1 Special Rules Applicable to Social Media. Currently, no major social media platforms are banned in South Africa.

The ARB Code requires advertisements to be clearly distinguishable as such in whatever form and medium they are used (for example, by using the words “ADVERTISEMENT” or “ADVERTISEMENT SUPPLEMENT” in print media or labels such as “Sponsored”, “Promoted” or “Ad” on digital platforms). In terms of Appendix K, paid social media advertising must be obviously identifiable as such.

Appendix K to the ARB Code is the only piece of regulation for Influencer Marketing in South Africa. Its contents were discussed in 4.1 Special Rules Applicable to Social Media.

Both the influencer and the advertiser can be held liable for any false or misleading claims.

There are no specific rules or regulations that apply to the solicitation and use of consumer reviews. These will be subject to the general principles regarding truthful presentation and, to the extent that they constitute a “testimonial”, the regulations discussed in 2.5 Endorsements and Testimonials.

There is no authority for holding an advertiser liable for consumer reviews.

There are specific provisions in the ARB Code that regulate competitions, mail order advertising and direct marketing advertising. In the case of direct marketing, the Code contains a fairly lengthy appendix that sets out guidelines and principles governing all forms of direct marketing, including marketing practices such as direct mail/catalogue marketing, direct response broadcasting, telephone marketing, cell phone/text message marketing and email marketing.

For example, marketers must not send e-mail marketing communications without the consent of the recipient, except where there is an existing business relationship. This is also in line with the Protection of Personal Information Act.

In cases where a consumer has provided his or her e-mail address to a marketer, the marketer has implied consent to e-mail that consumer. Recognising that a consumer can opt-out of receiving marketing communications at any time, however, marketers must present consumers, including current customers, an easy-to-see, easy-to-understand and easy-to-execute opportunity to decline further marketing (ie, opt out), the use of their name or other information, at least once every three years.

Marketers must also not misrepresent the source of any message or use false or misleading “subject” lines in e-mail marketing communications. The subject line and body text in e-mail marketing communications must accurately reflect the content, origin and purpose of the communication.

The Direct Marketing Appendix of the ARB Code contains specific rules relating to telemarketing, including restrictions on the hours during which calls can be made, the use of DMASA’s “do not contact” service as well as an internal “do not contact” list, a prohibition on sequential or random dialling and a requirement for telemarketers to identify themselves, the business or organisation represented and the purposes of the call promptly at the beginning of each outbound telemarketing call.

Marketers must not knowingly contact a consumer who is not already a current customer more frequently than once per month for the same product or service unless they have received consent to do so. Marketers using predictive dialling technology should ensure that abandoned or “hang up” calls be kept as close to 0% as possible and must in no case exceed 5% of dialled calls for any given outbound telemarketing campaign.

The Direct Marketing Appendix to the ARB Code provides that marketers must not knowingly send unsolicited voice and/or text and/or multimedia messages to wireless devices of either consumers or businesses before consulting the national Do Not Contact database.

At the request of a current customer or a consumer or business, marketers must promptly add cell phone numbers to an internal Do Not Contact list and cease marketing to the current customer, consumer or business at that number.

The Wireless Application Service Providers’ Association (WASPA) has a Code of Conduct which entitles consumers receiving unwanted SMS marketing messages (where they have not directly supplied their numbers to the marketer) to report the spammer to WASPA. This regulation is based on consumer protection principles, particularly the consumer’s right to privacy. All marketing SMS messages must allow a person who sends a reply SMS back with the word “STOP” in it, to opt out of further SMS communications. Enforcement of WASPA’s Code and its Advertising Rules is achieved by a quasi-judicial system that consists of a procedure for lodging and responding to complaints. Adherence to the Code and the Advertising Rules is mandatory for all providers operating in South Africa.

There are no express prohibitions on targeted advertising provided it is executed in accordance with the provisions of the ARB Code and its general principles.

Marketers must obtain the express consent from the parent of a minor for the collection and use of their personal and/or contact information.

Where the child, parent or guardian withdraws or declines permission to collect, use or disclose a child’s information, marketers must immediately delete all such information from their database.

There are no other important privacy rules related to advertising in South Africa.

The Consumer Protection Act governs promotional competitions and contains provisions aimed at preventing consumers from being misled. For example, a person must not be told that they have won a competition if no competition has, in fact, been conducted or if the prize for the competition is subject to a previously undisclosed condition. A promoter of a competition must also not require any consideration to be paid by a participant other than the reasonable costs of posting or otherwise transmitting an entry form. There are also rules about who may be awarded a prize in a competition, as well as requirements to have competition rules and clarity about the basis upon which a competition will be determined.

The Consumer Protection Act does not distinguish between contests of skill and games of chance.

Games of chance and/or contests of skill in South Africa do not need to be registered or approved by a regulatory body. However, they must comply with Section 36 of the Consumer Protection Act.

Products may not be described as “free” if there are any costs to the consumer in addition to the actual cost of any delivery, freight or postage.

Where it is claimed in an advertisement that, if one product is purchased, another product will be provided “free”, the advertiser must be able to show that it will not be able to recover immediately and directly the cost of supplying the “free” product, wholly or partially. Furthermore, an advertiser may not recover or attempt to recover the cost of the “free” product by, eg, increasing the usual price of the product with which the “free” product is offered, imposing packaging and handling charges, or inflating actual delivery costs.

In terms of the Consumer Protection Act, certain rules apply to the renewal of fixed term agreements. On the expiry of a fixed term agreement, it will be automatically continued on a month-to-month basis, subject to any material changes of which the supplier has given notice, unless the consumer expressly directs the supplier to terminate the agreement on the expiry date or agrees to a renewal of the agreement for a further fixed term.

There are as yet no specific rules or guidance related to the use of artificial intelligence in connection with the development of advertising content in South Africa.

There are no specific rules or guidance related to making claims that a product is developed through the use of AI, is powered by AI, or has AI-related capabilities. These claims will be subject to the general principles of truthful content and substantiation.

There are no special rules or guidance related to the use of chatbots in South Africa.

Cryptocurrency in South Africa is regulated as a financial product and regulated by Financial Intelligence Centre Act, 2001. The ARB Code also provides that advertisements must expressly and clearly state that investing in crypto-assets may result in the loss of capital as the value is variable and can go up as well as down. Express wording such as “Investing in Crypto assets may result in the loss of capital” must be used.

Further requirements include that:

• the crypto service or product must be easily understandable for the intended target audience;
• adequate substantiation must be available for rates of return, projections and forecasts;
• advertisements by providers who are not registered credit providers should not encourage the purchase of crypto-assets on credit; and
• social media influencers or ambassadors promoting a crypto product or service must ensure that the requirements regarding influencer marketing are met.

Influencers and ambassadors may not offer advice on trading or investing in crypto-assets and may not promise benefits or returns.

There are no special laws or regulations that apply to advertising within the metaverse in South Africa.

A number of particular industries and types of products are specifically regulated, either through specific laws or through specific provisions in the ARB Code. These include the following.

• Tobacco – the Tobacco Products Control Act of 1993 sets out various control laws in respect of tobacco products. For example, the advertising, promotion and sponsorship of tobacco are banned, and warnings must appear on the packaging of tobacco products. The draft Tobacco Products & Electronic Delivery Systems Bill of 2022 proposes amendments to this Act to deal specifically with changes in the industry that relate to nicotine delivery systems, such as vaping devices, and introduces plain packaging for the first time.
• Medicines – the SA Code of Practice for the Marketing of Health Products regulates, inter alia, the advertising of prescription medications to the healthcare profession and self-medication to the public.
• Food, cosmetics and disinfectants – the Foodstuffs, Cosmetics and Disinfectants Act of 1972 prohibits false or misleading advertisements or descriptions of foodstuffs, cosmetics or disinfectants and has detailed regulations governing the labelling of such products.
• Alcohol – the Liquor Act of 2003 and the Liquor Products Act of 1989 restrict false and misleading advertising of liquor, as well as advertising that is meant to target minors. These Acts are also under revision, with future restrictions on advertising of alcohol being proposed. The ARB Code also has an appendix A dealing with the advertisement of alcoholic products.
• Credit – the National Credit Act of 2005 is applicable to a provider of credit, or a seller of any goods or services that are being advertised for purchase on credit, and sets out how such credit may be advertised. Credit may not be advertised in a misleading manner, nor may an unlawful form of credit (as set out in the Act) be advertised.

In terms of the Independent Broadcasting Authority (Advertising, Infomercials and Program Sponsorship) Regulations under the Independent Broadcasting Authority Act of 1993 (which has since been repealed, although the Regulations remain in force), no broadcaster may permit any product placement in any news or current affairs programme transmitted by it, and product placement in programming other than news and current affairs must be subordinate to the content of the programme material.

In terms of the Electronic Communications Act of 2005, all broadcasting service licensees must adhere to the ARB Code. Product placement as a means of advertising would, therefore, also be subject to the ARB Code. The ARB Code stipulates that advertisements should be clearly distinguishable as such, whatever their form and whatever the medium used.

Other than those already mentioned, there are also specific rules in the ARB Code relating to, inter alia, the advertisement of charitable causes, collectibles and limited editions, educational courses, financial advertising, business opportunities, work-from-home schemes, furniture, motor vehicles, all-inclusive tours, property, smoking deterrents, cellular telephones, breast milk substitutes, pet food and vapes (e-cigarettes).