Monday, 3 May 2010

The limitations of ASA sanctions for certain advertisements


Last week the ASA Directorate upheld a consumer complainant, who submitted that an advertisement by an alleged traditional healer is misleading as it makes unsubstantiated claims. The advertisement in question is a flyer containing claims that the advertiser could, inter alia, “Bring back lost lover...”, and treat various sexually transmitted diseases.

The Directorate noted that it found the proliferation of charlatan healers in recent years concerning and that it has previously ruled against such advertisements. It expressed a hope that the appropriate authorities (and by this, I imagine it is referring to the Health Professions Council of South Africa and the Medicines Control Council) will address the issue as it is likely causing harm to the credibility of legitimate healers and practitioners.

In terms of Clause 4.1 of Section II of the Code of Advertising Practice, advertisers are required to hold substantiation for any direct or implied claims made. Despite this particular advertiser being offered the opportunity of supplying such substantiation, none was received and the Directorate found that the advertisement contravened the relevant clause of the Code and that the advertisement was likely to mislead consumers. The advertiser was ordered to withdraw the advertisement in its current format and it was stated that the ASA would issue an Ad Alert to its members in respect of the advertisement.

This may, however, be an empty victory for the complainant, as a ruling of the Advertising Industry Tribunal two days previously illustrates. In that matter, the same complainant had previously succeeded in her complaint against a similar advertisement which made claims of miracle cures to a plethora of problems. In contravention of the ruling, the advertiser continued to advertise and the question of sanctions was raised. It was found that sanctions were indeed appropriate but it was noted that the ASA does not have a representative member who has any control over advertising placed in mailboxes and the sanctions available would therefore have no material effect. Enforcement is virtually impossible. The only weapon in the ASA’s arsenal for advertisements that do not pass through conventional media such as self-printed flyers and advertisements distributed directly by the advertiser is that an Ad Alert can be issued (as it was in this case) to its members (including newspapers, magazines, radio, television and the Printing Industries Federation) that they are not to accept any advertising from this advertiser until further notice.

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