Aveo TSD / A KARJIEKER / 17068
Ruling of the : ASA Directorate
In the matter between:
Dr Azgher Karjieker Complainant(s)/Appellant(s)
A & L Trust t/a Allnutt, Luttich & Franklin Management Consultants /Respondent
3 October 2011
Dr Karjieker lodged a complaint against a print advertisement for the AveoTSD anti-snoring / apnoea aid
that appeared in the Southern Suburbs Tatler.
The advertisement stated, inter alia, “Clinically proven to treat problem snoring and Obstructive Sleep
Apnoea”, “Recommended by doctors internationally” and “92% Success Rate”.
COMPLAINT
The complainant submitted, in essence, that the claims are false.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint, the following clauses of the Code were taken into account:
• Section II, Clause 4.1 – Substantiation
• Section II, Clause 4.2.1 – Misleading claims
RESPONSE
The respondent submitted, inter alia, that all advertising of the product has ceased. The respondent
withdrew from marketing the product and ceased all operations with regard to the product. The respondent
no longer holds any distribution rights for the product.
2
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
The ASA has a long standing principle which holds that where an advertiser provides an unequivocal
undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised, that
undertaking is accepted without considering the merits of the matter.
The respondent’s undertaking appears to address the complainant’s concerns and there is therefore no
need to consider the merits of the matter at this time.
The undertaking is accepted on condition that the claims in their current format are not used again in future.
The respondent’s attention is drawn to Clause 15.5 of the Procedural Guide.
AXE DEODORANT / D THERON / 18459
Ruling of the : ASA Directorate
In the matter between:
Dawie Theron Complainant (s)/Appellant(s)
Unilever South Africa (Pty) Ltd Respondent
14 October 2011
Mr Theron lodged a consumer complaint against a television commercial for AXE deodorant.
The commercial is set in a small, seemingly Italian town and opens with a little boy witnessing a winged
creature falling from the sky. The impact of this causes people to fall off their chairs. When she gets up,
one sees that she is female, barefoot, and dressed in what appears to be rags wrapped around her body.
Following this, many more of these creatures are shown falling to earth, ultimately getting up and
approaching a man who is somewhat unsure of what is happening. The closing scene shows the man
spraying the deodorant and a subsequent thud sound is heard. The voice over says, inter alia, “New AXE
deodorant. Even angels will fall.” The text on screen states, “EVEN ANGELS WILL FALL.”
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
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COMPLAINT
In essence, the complainant submitted that he was offended by the use of angels in the commercial. The
fact that these winged creatures fall from the sky suggests that they are heavenly creatures. According to
the Bible, angels are God’s messengers, and the suggestion that angels will fall for a man wearing this
deodorant is incompatible with his belief as a Christian.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the Clause 1 of Section II (Offensive advertising) of the Code was taken into
consideration.
RESPONSE
The respondent submitted that the commercial depicts ladies with wings falling from the sky. They all go
towards a man that they are attracted to as he is wearing AXE deodorant.
It added that the depiction of angels per se is not offensive and the depiction of angels coming down to
earth cannot be regarded as offending the Christian religion. Angels do not belong solely to the Christian
religion. Examples of religion that believe in angels are Buddhism, Hinduism, Islam, Judaism, Mormonism
and Protestant Christianity.
There is nothing in the commercial that attacks / discredits Christianity and there is no undermining of a
core Christian belief. While angels may have their origin in religion and mythology, they have become a
secular property. There are numerous cartoons, stories and movies about angels.
In Virgin Mobile / JJ Moller and others / 5465 (25 July 2006), the Directorate ruled that the commercial was
hyperbolic and would not be interpreted as an attempt at a factual portrayal of heaven. The commercial
was said to not include anything to indicate that it was a Christian heaven. The same principles apply in this
matter.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
ASA Directorate considered all the relevant documentation submitted by the respective parties.
Clause 1 of Section II states, inter alia, that “No advertising may offend against good taste or decency or be
offensive to public or sectoral values and sensitivities, unless the advertising is reasonable and justifiable in
an open and democratic society based on human dignity, equality and freedom”.
The complainant submitted that the commercial is offensive as it depicts angels, who are regarded as
God’s messengers, falling from heaven for a human wearing AXE deodorant.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
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The ASA acknowledges that South Africa is a multi-cultural society and recognizes that it is important to
ensure that all religious faiths and beliefs, no matter how large or small the communities that practice them,
are treated with the same consideration and respect.
In Mavericks / FM Boulle and Another / 11224 (4 August 2008), the Directorate considered a complaint
against an advertisement that featured an image of a woman who appeared to be in prayer. She was
shown holding a set of Rosary beads with a halo above her head. The payoff line said “BELIEVE”. The
complainant submitted that the advertisement was offensive as it featured symbols which were sacred to
Christians to promote a service (a strip club) that Christianity is opposed to. The Directorate stated:
“While the Directorate must be careful not to sanctify religion to a point that advertisers cannot refer to it, it
must take cognisance of the manner in which religious symbols are referred to.”
The Directorate upheld the complaint and rejected the respondent’s proposal of removing the halo and
rosary beads. It pointed out that, even if these elements were removed, the white dove present in the
advertisement was commonly associated with Christian symbolism. It added that doves symbolised the
Third person of the Trinity and were featured in Christian art which is symbolic of the Holy Spirit.
In GHD Hair / LJ Van Zyl / 10419 (21 May 2008), the Directorate considered a complaint against a print
advertisement that featured an image of a woman with closed eyes, holding Rosary beads in her hands.
The Afrikaans wording alongside (translated for the sake of convenience) stated “May my luscious locks
wrap every man on earth around my little finger.” The pay-off line “Thy will be done” (“U wil geskied”) was
also used. The complainant submitted that the tagline used in this context was offensive. The Directorate
upheld the complaint on the basis that the Lords Prayer was used for the sake of vanity and trivialised.
A similar approach can be applied to the matter at hand.
The Directorate notes that the commercial is metaphorical and that the angels are meant to represent
something more than simply beautiful women.
The commercial sets out to communicate that the new AXE fragrance is so irresistible that even angels will
be enticed by it.
It is set in an Italian like town which is renowned for being romantic, it also has religious significance insofar
as Catholicism is concerned. The setting adds to the religious ambience and shows angel-like creatures
falling from the sky. The music in the background is reminiscent of a choir which goes with the theme of
angels.
The concern with this is the fact that the “angels” are depicted as falling from the sky / heaven, which in
itself has significant meaning, and secondly, that they are attracted to the young, mortal man.
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An angel, according to Christian beliefs is God’s heavenly messenger who obeys His commands. Angels
also symbolise purity and goodness while “fallen angels” symbolise wickedness. Fallen angels are
generally as angels that rebel against God, and are permanently banned from God’s glory and presence.
The Directorate is also mindful of the fact that the angels are not simply coming to earth, or descending on
earth, but falling, effectively crashing to earth, which supports the notion that they are fallen angels,
presumably banished.
When it becomes apparent that they are falling from heaven over a man who wears this deodorant would
be considered disrespectful and offensive to the core beliefs of Christians, as angels are known to be
celestial beings regarded as divine and pure. The commercial therefore communicates that saintly
creatures would give up their heavenly status and fall from grace for a man.
While the Directorate is mindful of the hyperbole employed by the respondent, it is not convinced that this is
sufficient to negate the offence experienced by the complainant. Unlike the Virgin Mobile example
highlighted by the respondent, this commercial takes place in the “real world”, and not in the fantasy of the
hero character.
The voice-over along with the tagline in the commercial state “NEW AXE EXCITE. EVEN ANGELS WILL
FALL.” There is a close up toward the end of the commercial showing the angels smelling the young man
which suggest that they are completely drawn to him. This adds to the impression that these celestial
beings are being kicked out of heaven over their quasi lust for a human wearing this fragrance. Put
differently, the angels fell from heaven over their desire for the man wearing this deodorant.
As such, the problem is not so much that angels are used in the commercial, but rather that the angels are
seen to forfeit, or perhaps forego their heavenly status for mortal desires. This is something that would
likely offend Christians in the same manner as it offended the complainant.
Based on the above the commercial is in contravention of Clause 1 of Section II of the Code.
The respondent is required to:

Withdraw the commercial in its current format;

The process of withdrawing the commercial must be actioned with immediate effect;

The process of withdrawing the commercial must be completed within the deadlines stipulated by
Clause 15.3 of the Procedural Guide, and

The commercial may not be used again in this format in future.
The complaint is upheld.
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___________________________________________________________________________
BBQ KETTLE BURNER / T THACKWRAY / 18218
Ruling of the : ASA Directorate
In the matter between:
Mr Terence Thackwray Complainant(s)/Appellant(s)
Gas Shoppe CC Respondent
11 October 2011
Mr Thackwray lodged a consumer complaint against the respondent’s packaging and website,
www.gasbraai.co.za, which advertises its bbq Kettle Burner Conversion Kit.
The online advertisement explains how the product allows you to “Convert your kettle braai to gas in 2
minutes”, and also shows images of the product. It states, inter alia, as follows:
“Price includes hose and bull nose regulator but excludes gas bottle. Price excludes delivery – if required.
Please allow 2 working days for delivery – subject to stock availability”.
COMPLAINT
In essence, the complainant submitted that on the website and on packaging it is stated clearly that the kit
includes hose and regulator. When you buy it you have to purchase these items separately for an
additional R100. Only when it is purchased online or via the telephone does the kit come complete. The
advertisement is therefore misleading to the public.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Clause 4.2.1 of Section II (Misleading claims) was taken into consideration.
RESPONSE
The respondent submitted, inter alia, that it was appointed agents for the Kettle Braai converter at the
beginning of the year by the importers of this product, UMS (Pty) Ltd who are based in Durban. When
discussing the selling price at the outset of its involvement, it agreed with its principals that it would sell the
product at UMS’s price (R740 including VAT and regulator). This price, however, excludes transport costs.
When it started selling the product, it decided not to charge for transport but to offer the customer the
regulator as an optional extra. Bearing in mind that it had already covered the cost of transport from Durban
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
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where UMS are based. It was satisfied that this decision to charge for the regulator would offset transport
costs as well as relieve its customer of costly calls to Durban, and having the product available at point of
sale in Cape Town and provided all round convenience.
After it received the complaint it was still its view that its pricing structure was both logical and fair. However
on taking a good look at the packaging it noticed that there is a section that states “including regulator”.
This was totally overlooked and it therefore has to agree that this is misleading to the consumer. It has
removed the “FREE REGULATOR” printing from its packaging and will recalculate its pricing without the
Regulator and add transport as part of the cost accordingly.
It also offered to credit the complainant for the regulator, provided that he pays for transport costs as if it
were bought from UMS directly, and shipped to Cape Town.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
At the outset, the Directorate notes the respondent’s undertaking to correct its packaging to no longer
reference to the fact that the regulator is included in the box.
This would appear to address the complainant’s concerns insofar as the packaging is concerned, and is
therefore accepted on condition that the respondent effects this change within the deadlines stipulated in
Clause 15.3 of the Procedural Guide (3 months in the case of packaging).
However, the Directorate still has to determine whether the respondent’s website is problematic.
Clause 4.2.1 of Section II states that advertisements should not contain any statement or visual
presentation, which directly or by omission, ambiguity or exaggerated claim, is likely to mislead the
consumer about the advertised product.
The complainant argued that the advertising creates an expectation that the hose and regulator are
included, which is not the case.
When considering the advertisement as a whole this is exactly the impression created by the wording
“Price includes hose and regulator, but exclude gas bottle”. In fact, the image of the product shown on the
website also shows a hose and attached regulator. When confronted with the verbal and visual claim, any
hypothetical reasonable consumer will be under the impression that the hose and regulator are included.
This is expressly mentioned and also emphasised by the visual claim.
The fact that the respondent believes the costs for the regulator would offset any delivery charges if one
were to order from the suppliers in Durban is irrelevant, and the argument somewhat disingenuous.
Accordingly, the respondent’s website advertisement for bbq Kettle Conversion Kit is misleading and
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therefore in contravention of Clause 4.2.1 of Section II of the Code.
Based on the above, the respondent is required to:

Withdraw the advertisement that gave rise to this dispute;

Action the withdrawal of the advertisement with immediate effect upon receipt of this ruling;

Ensure that the advertisement is withdrawn within the deadlines stipulated in Clause 15.3 of the
Procedural Guide; and

Not use the advertisement in its current format again in the future.
This aspect of the complaint is upheld.
BIOMIX SLIMMING SOLUTION / HA STEINMAN / 16876
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Kalosceuticals CC Respondent
4 October 2011
BACKGROUND
In biomix Slimming Solution / H A Steinman / 16876 (14 June 2011) the Directorate ruled, inter alia, that the
claims appearing on the respondent’s website http://www.slimmingsolution.co.za and packaging regarding
the product’s ability to facilitate weight loss and the implied presence and efficacy of hoodia as an
ingredient were unsubstantiated and therefore in contravention of Clause 4.1 of Section II.
The respondent was instructed to withdraw the advertisement with immediate effect within the deadlines
stipulated in Clause 15.3 of the Procedural Guide.
SUBSEQUENT TO THE RULING
On 18 August 2011 the complainant lodged a breach allegation against the respondent’s banners and
promotional material found at a health store at the Cape Town V & A Waterfront, Nu Pharmacy in
Claremont Cavendish Centre and Royal Ascot Pharmacy at Paddocks Shopping Centre.
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It was submitted that to date the respondent has not removed any of its offending banners or promotional
items containing claims that are unsubstantiated. Two images were attached to the breach complaint.
These images were from the Nu Pharmacy in Claremont and the Royal Ascot Pharmacy respectively.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation the Directorate considered Clause 15 of the Procedural Guide
(Enforcement of rulings) as relevant.
RESPONSE
The respondent submitted, inter alia, that the complainant is not complaining about the advertising material
that was originally the subject of his complaint (i.e. the website and packaging), but rather about the fact
that the respondent has not removed banners or promotional items from a number of pharmacies.
It further submitted, inter alia, that from its reading of Clause 15.3, sub-clause 6 dealing with “pamphlets,
posters and leaflets” appears to be the closest provision to the store banners complained against, and only
states, “as determined by the ASA”. This omission of a specific time period seems to suggest that the ASA
will take the facts and circumstances of each specific case into account in determining whether there was
adherence.
It submitted that the company Transfarm was responsible for the dissemination (and consequently
removal) of all its advertising material into pharmacies. However, a while back this company was bought
over, and no longer offers such services, which means that the respondent is solely responsible for
dissemination, and withdrawal of all advertising material to pharmacies. As a small company, material was
not regularly disseminated into the market, and the banners were disseminated into the market over a
period of approximately six years.
The respondent added that it had given instructions to all the pharmacies, which to the best of its
knowledge had any of the advertising material, but cannot reasonably visit each of these pharmacies to
ensure that its request was complied with. The NuPharmacy banner was not commissioned by the
respondent, but appears to be a pharmacy specific initiative, as this pharmacy is one of the respondent’s
oldest and most loyal customers. A letter from Nu Pharmacy responsible pharmacist confirming that all
advertising material erected at the premise is directed by him was also submitted.
It appears that its biomix Slimming Solution was supplied to approximately 220 pharmacies in the Gauteng
area, and a further 160 pharmacies in the Western Cape. The examples of the V&A health shop and the
Royal Ascot Pharmacy are certainly not an accurate reflection of the various materials that have been
removed, given the respondent’s limited labour resources. A list of pharmacies that no longer carry its
adverting material, both in Gauteng and Western Cape was attached to the response.
The respondent confirmed that it is taking all reasonable steps to comply with the ruling, taking into account
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
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its limited labour resources and the size of its company. The three outlets identified by complainant will be
immediately remedied.
From the above, it is clear that the complainant’s allegation that it had not removed “any of its banners or
promotional items from a number of pharmacies” is not correct.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the
Directorate or the ASA Committees lies with the person against whom such ruling has been made”.
The respondent submitted a summary of all different stockist of its product and the progress made in
removing the offending material. From the list supplied by the respondent 221 pharmacies in Gauteng
carried its product and /or advertising, and 167 in Western Cape, totalling 388 pharmacies. Of these, 322
have already been cleared insofar as the respondent’s advertising is concerned.
In light of the above and given that the respondent, as a small company, took reasonable steps to comply
with the ruling, it is the Directorate’s view that genuine efforts were made to remove the offending banners
or promotions.
In light of the above, it is the Directorate’s view that the respondent took reasonable steps after the issuing
of a ruling to comply and therefore the respondent is not in breach of the Directorate ruling of 14 June
2011.
The respondent is cautioned that responsibility for adherence to a ruling made by the Directorate or the
ASA Committees lies with the person against whom such ruling has been made.
The breach allegation is dismissed.
DR TUNDE / P GANESAN / 17662
Ruling of the : ASA Directorate
In the matter between:
Patrick Ganesan Complainant(s)/Appellant(s)
Dr Tunde Respondent
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11
14 October 2011
Mr Ganesan lodged a consumer complaint against a pamphlet distributed by “Doctor Tunde” promoting his
traditional healing business.
The pamphlet contains, inter alia, the wording:

“PENIS PRO ENLARGER”

“Remove bad luck, witchcraft, tokoloshe & demons from homes.”

“Find out why you are not progressing in life and the solution”

“Guarantee you to win that troubling court case No matter what stage”
COMPLAINT
The complainant submitted, in essence, that the claims made in the advertisement are not possible to
achieve.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE

Clause 4.1 Section I – Substantiation

Clause 1 of Section II – Misleading claims
RESPONSE
Despite all reasonable efforts made to elicit a response from the advertiser, no response was received. The
respondent was telephonically advised about the complaint but refused to divulge his contact details where
the correspondence from the Directorate could be sent to. The Directorate therefore had no alternative but
to rule on the matter based on the information available.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The proliferation of charlatan healers in recent years is concerning, especially as they tend to use
unregulated forms of media, such as flyers distributed by hand, to promote their businesses based on
unsubstantiated claims. The ASA has ruled against such advertisements on numerous occasions in recent
years, and it is hoped that the appropriate authorities will address this issue, as it is no doubt causing harm
to the credibility of legitimate healers and practitioners and this industry at large.
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Clause 4.1 of Section II of the Code requires that advertisers hold substantiation for any direct or implied
claims made in their advertisements.
The Directorate is of the opinion that the claims made, offering to resolve certain problems, treatment of
various diseases, bodily functions as well as permanent extension of male sexual organs are clearly
capable of objective substantiation as envisaged by the Code. However, despite being afforded an
opportunity to engage the ASA and ultimately supply such substantiation, none was received from the
respondent.
The advertising is therefore promoting the respondent’s services on the basis of unsubstantiated
claims and abilities, which is in contravention of Clause 4.1 of Section II of the Code.
Given this, the advertisement is likely to mislead people in a manner that is in contravention of
Clause 4.2.1 of Section II of the Code.
In light of the above, the respondent is required to:

withdraw the advertisement in its current format;

the process to withdraw the advertisement must be actioned with immediate effect on receipt of
the ruling;

the withdrawal of the advertisement must be completed within the deadlines stipulated by Clause
15.3 of the Procedural Guide; and

the advertisement may not be used again in its current format.
In view of the fact that the respondent has failed to respond and an adverse ruling has been made,
the ASA will issue an Ad Alert to its members with reference to the advertisement in question.
The complaint is upheld.
HIPPO INSURANCE / ST EXTON AND ANOTHER / 18386
Ruling of the : ASA Directorate
In the matter between:
Mrs ST Exton First Complainant(s)/Appellant(s)
Janine Kachelhoffer Second Complainant
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13
Telesure Group Services (Pty) Ltd Respondent
4 October 2011
Consumer complaints were lodged against a radio commercial for Hippo Insurance flighted during
September
2011.
The commercial features the voice of a man who says, inter alia, “ok, let’s see, Stick in a needle in my eye,
get insurance quotes, stick a needle in my eye get insurance quotes…” The following sound effects
suggest
that
he
has
stuck
a
needle
into
his
eye
as
he
is
heard
screaming.
The closing voice over says “Finding insurance quotes can be a pain in the … eye. Save time and money
with me Hippo. I’ll find you up to 13 car, home and buildings insurance quotes for you to compare. Visit
Hippo.co.za or SMS Hippo to 33328 and I’ll call you back.”
COMPLAINT
In essence, the complainants submitted that the commercial conjures up a horrific visual and that children
listening may try to emulate the act described.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:
• Section II, Clause 1 - Offensive advertising
• Section II, Clause 14 - Children
RESPONSE
The respondent initially argued the merits but subsequently advised that the commercial would not be used
in the future.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The ASA has a long standing principle which holds that where an advertiser provides an unequivocal
undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised, the
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14
undertaking is accepted without considering the merits of the matter.
As the respondent’s undertaking to not use the commercial addresses the complainant’s concerns, there is
no need for the Directorate to consider the merits of the matter.
The undertaking is therefore accepted on condition that the advertising is withdrawn in its current format
within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and is not used again in future.
INTERNATIONAL MERCHANDISE SERVICES / GAC STRATFORD / 16485
Ruling of the : ASA Directorate
In the matter between:
GAC Stradford Complainant(s)/Appellant(s)
Gull Management (Pty) Ltd t/a International Merchandise Services -Respondent
11 October 2011
Mr Stratfold lodged a consumer complaint against a direct mailer received from the respondent.
The mailer states, inter alia, as follows:
“FORMAL GUARANTEE
The Funds Deposit Certificate Award for the amount of R50 000 has been made out in your name. Mr G
Stratfold please return your Winnings Acceptance Form as soon as possible so that I may send you the
cash award and property entitlement that is rightfully yours”.
Below this, the mailer addresses the recipient as follows:
“Dear Mr G Stratfold
I am pleased to announce that only four recipients have been selected to win our top cash awards. Mr G
Stratfold, as a recipient of this mailing you have been selected and will definitely receive a cash award, plus
property entitlement when you take up this offer.
Please be advised that the R50 000 Cash Award, destined to our recipient is currently being stored in our
safe. I am now awaiting your Winnings Acceptance Form (completed with the required information) before
sending you the cash award!
Please reply before the deadline, no extensions shall be granted.
On receipt of your Winnings Acceptance Form, I will personally see to it that your cash award and property
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
15
entitlement are sent to you without delay.
IT IS IMPORTANT TO RETURN THIS DOCUMENT IMMEDIATELY TO RECEIVE YOUR REPORT OF
PRIZES AND PROPERTY
Please accept my sincere heartfelt congratulations …”
In order to claim the prize, the recipient is instructed to “… enclose with this Winnings Acceptance Form the
small contribution to cover the processing costs of your file and the shipping costs of your cash award and
property entitlement …” On the form it is indicated that the amount payable is R149,90. If one opts for
“Rush Processing & Guaranteed Insurance” another R20 is payable, and if one were to order from outside
the Republic of South Africa, an additional R40 applies.
COMPLAINT
The complainant explained that both his wife and he received these personalised letters (in fact, his wife
received two, each with different “Authorised Winnings Acceptance Numbers”), which makes him doubt the
odds that they are two of the alleged “… only four recipients … selected to win …”
The complainant believes that this letter is sent to the entire mailing list with the specific aim of convincing
the recipient that he has a very good chance of winning. In reality, it is a “con to get us to part with R149.90
in what really is a VERY expensive lottery”. He also took issue with the obscure reference to “property
entitlement”, complaining that there is no indication what this entitlement is.
The complainant concludes that “South Africa is full of gullible people who will fall for this scam”.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Clause 4.2.1 of Section II of the Code (Misleading claims) was taken into account.
RESPONSE
The respondent clarified the complainant’s apparent misunderstandings. It pointed out that the reference to
“… only four recipients …” is not a reference to how many people received the mailer, but rather to draw
attention to the top awards and generate excitement.
The respondent also noted that the complainant appears to have read the terms and conditions, which
clarify the relevant closing date and other necessary information. These same terms and conditions outline
the procedure if one wants to “… claim your cash award when not ordering …”, thus negating the complaint
that this is a “con” to get people to pay R149,90 in the hope that they will win.
Finally the respondent clarified that the “property entitlement’ referred to in this instance was “silver circle
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
16
infinity pendant studded with 24 crystals on a 50cm adjustable sliver leaf rope chain”.
The promotion is clearly not misleading, and is very clear in the fact that a recipient will receive a cash
award (which could range from R20 to the top prize indicated) and a product if they respond. The mystery
aspect is enjoyed and anticipated by its customers, and used widely in this industry.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
Clause 4.2.1 of Section II states that advertising 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 essential question raised by the complainant was whether or not this mailer would mislead people into
parting with money in order to receive, what appears to be a large cash prize.
Before getting into the merits, it has to be noted that the ASA only has jurisdiction over the content of
advertising complained of. Whether or not the respondent was running a lottery or whether its business
practices fall short in some regard is not something that the ASA can decide on.
When considering the mailer as a whole, the Directorate cannot ignore the prominent and overwhelming
reference to “R50 000,00” in large, bold, red lettering at the top of each page, and again at the back of the
“WINNINGS ACCEPTANCE AND PROPERTY ENTITLEMENT FORM”. The mailer is specifically
addressed to the recipient, and states, inter alia, as follows:
“IDENTIFICATION OF THE RECIPIENT
TO: MR G STRATFOLD
ADDDRESS [lists the complainant’s address]
TO:
TOTAL R50 000,00
THE REPORT: TO BE AWARDED TO OUR WINNER MR G STRATFOLD WITHOUT DELAY”
There can be no debate that this creates an initial impression that the “lucky” recipient has been selected
as the winner of the R50 000 cash prize.
From here on, the excitement is built on the fact that the recipient not only receives this cash prize, but also
an obscure “property entitlement”, and all that the recipient has to do is return the relevant form. As is clear
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
17
from the copy quoted at the beginning of this ruling, the wording chosen emphasises and reinforces the
overwhelming expectation that the complainant (or any recipient for that matter) was elected as the winner
of the R50 000 prize as well as the property entitlement.
When one looks at the “WINNINGS ACCEPTANCE AND PROPERTY ENTITLEMENT” form, one is led to
believe that “To receive” these awards, all one has to do is enclose the “… small contribution to cover the
processing costs … and the shipping costs of your cash award and property entitlement …” The only
amount indicated is R149,90 (depending on whether one opts for additional insurance or whether one
orders from outside of the RSA).
On the back page one is asked to decide “HOW WOULD YOU LIKE TO RECEIVE THE R50 000,00
AWARD?” and what one plans on doing with this money.
There is no doubt that to any hypothetical reasonable person, this would mean that he / she has been
selected as the winner of the R50 000 prize and the “property entitlement”, pending the acceptance form
and required funds.
No mention is made of the fact that the recipient is actually one of a few thousands (depending on the size
of the respondent’s mailing list), or of the fact that the R50 000 prize is still to be determined, and may very
likely not go to the recipient. In addition, there is no clarification that the alleged “property entitlement”
actually merely refers to a silver pendant on a chain.
Equally, there is no mention made that the “cash prize” one is more likely to receive is a R20 voucher
(apparently 5000 of these are “awarded”), R50 (apparently 100 “prizes” to this value were awarded), R1500
(it appears that 3 “prizes” of this value were allocated), or even R3000 (seemingly 2 awards of this value
were allocated). This information ONLY appears in the cluttered and hard to read “GUARANTEE, TERMS
& CONDITIONS” right at the bottom of the back page in a substantially smaller font. In fact, it is only here
that the respondent discloses that “You will be awarded the guaranteed cash prize of R50 000 (10/02) IF
YOU QUALIFY AND YOUR AUTHORISED WINNINGS ACCEPTANCE NUMBER IS DRAWN FOR THAT
PRIZE …” (our emphasis).
When one considers that the “GUARANTEE, TERMS & CONDITIONS” comprise of more than 700 words,
the above information is hardly prominent or prevalent. In fact, to put this into perspective, the
“GUARANTEE, TERMS & CONDITIONS” at issue contains roughly as much information as is conveyed in
the first three pages of this ruling, but in a font size and spacing small enough to fit into a section that
measures 59mm X 197mm.
It is trite that advertisers cannot use information hidden in disclaimers or terms and conditions to clear up,
or as is the case here, contradict an initially misleading impression created.
The Directorate therefore agrees with the complainant that the overwhelming impression created is that the
recipient is the “lucky” winner of the amount shown, and that this amount and the “property entitlement”
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
18
would be dispatched as soon as he returns the relevant form, along with the required payment of R149,90.
As this is clearly not the case, the advertising is likely to mislead people in a manner that contravenes
Clause 4.2.1 of Section II of the Code.
Based on the above, the respondent is required to:

Withdraw the relevant advertisement;

Action the withdrawal of the advertisement with immediate effect upon receipt of this ruling;

Ensure that the advertisement is withdrawn within the deadlines stipulated in Clause 15.3 of the
Procedural Guide; and

Not use the advertisement in the current format again in the future.
The Directorate specifically notes that while this promotion has long since ended, the respondent
should ensure that future promotions are not similarly misleading.
The complaint is upheld.
INTERNATIONAL MERCHANIDISE SERVICES / L KATIYA / 16714
Ruling of the : ASA Directorate
In the matter between:
Ms Lungi Katiya Complainant(s)/Appellant(s)
- Gull Management (Pty) Ltd t/a International Merchandise Services - Respondent
5 October 2011
Ms Katiya lodged a consumer complaint against a direct mailer for cash award from International
Merchandise Services .
The mailer is headed “NOTICE OF CASH AWARD R50 000,00”.
It further states, inter alia,
“Ms Katiya – CONGRATULATIONS! You have been awarded, and I am authorised to send you, a cash
prize of up to R50 000,00. Your pre-selected cash winning status was confirmed when the original copy of
this award winner’s notice was signed off. You have been promoted to this level and your prize has been
authorised, after your computer selection had been checked and verified by our Audit Department.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
19
“I would like to advise you that I have been authorised to award one of two cash prizes of up to R50 000,00
to the pre-selected cash prize winner....”
“You will need to validate your claim by filling in the Claim Certificate below. You will be required to indicate
whether you would need the Cash prize as an upfront lump sum or monthly for a year....”
“Ms Katiya, you are strongly urged to send in your Claim Certificate within 10 days to get the Cash prize
and bonus which had already been allocated and reserved for you”
COMPLAINT
In essence, the complainant submitted that the advertisement is misleading to the recipient. The intention
of the letter is to confuse and misleading potential clients. Reference was also made to a previous ruling
under reference International Merchandise Services / Mr A G Cunningham / 1250 (1 July 2005). In that
matter, the respondent undertook to not use the promotion at issue again.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Clause 4.2.1 of Section II (Misleading claims) was considered relevant.
RESPONSE
The respondent submitted that the complainant did not identify anything in particular that she finds
misleading, so it is not possible to give specific comment. It added that the complainant did not respond to
the promotion and therefore could not have been misled into doing anything.
The reference to International Merchandise Services / Mr A G Cunningham / 1250 (1 July 2005) is
irrelevant as this is a completely new promotion.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
In any dispute before the Directorate, the complainant carries the responsibility of articulating his or her
complaint and concerns to the point that the respondent and Directorate can adequately interpret them and
consider them. The Directorate cannot expect a respondent to guess what the issues pertain to, and
likewise cannot adequately rule on the matter in the absence of clear and concise comments as to what
prompted the complainant to complain.
The complainant submitted that the mailer in question is misleading. However, she did not give reasons as
to why she holds this view. No specific phrases or claims were identified and no reason was given as to
why the content of the mailer would likely mislead or confuse people.
The respondent correctly noted this, and was therefore unable to respond on this issue.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
20
In addition, while the complainant referred to a previous ruling, she has not explained in what manner she
believes that the new promotion and mailer would amount to a breach of the respondent’s previous
promotion which it undertook to stop running. The respondent, in turn, confirmed that this is an entirely
different promotion.
Given the lack of information as to what the complainant regards as misleading, the Directorate cannot rule
on the material based on the complaint before it.
The complaint is therefore dismissed.
KEYNOTE TRADING AND INVESTMENT / CROSSCARE / 15333
Ruling of the : ASA Directorate
In the matter between:
Crosscare Limited Crosscare Research & Development Limited (s)/Appellant(s)
Keynote Trading & Investment 17 (Pty) Ltd t/a Keynote Health - Respondent
4 October 2011
BACKGROUND
In KEYNOTE Trading & Investment / Crosscare / 15333 (31 May 2010) the Directorate ruled that the
respondent’s claims were unsubstantiated, and therefore in breach of Clause 4.1 of Section II.
The following claims appeared on the respondent’s packaging, website and pamphlets for its “Colix infant
drops”:









That COLIX infant drops are “lactase enzyme drops” and that the product “contains natural lactase
enzyme”
That lactase enzyme at a concentration of 94NLU/drop is an ingredient of COLIX infant drops
(listed as the sole ingredient)
“COLIX is safe from birth”
“no alcohol or sugar”
“COLIX Infant Drops aids in the digestion of lactose without the accumulation of gas and may help
relieve the symptoms of colic”
“any unused enzyme is simply eliminated via the colon”
“COLIX Infant Drops offers a completely new approach by treating the milk itself”
That “premature babies and undernourished children” may benefit from COLIX Infant Drops
That COLIX Infant Drops allows “relief from colic”
The respondent was instructed to withdraw the above claims with immediate effect within the deadlines
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
21
stipulated in Clause 15.3 of the Procedural Guide and not use them again. Subsequent attempts by the
respondent to submit adequate substantiation for the relevant claims were unsuccessful.
On 13 April 2011 the Directorate held that the respondent was in breach of the 31 May 2010 ruling because
it continued using some of the claims ruled against. The claims at issue were, “Lactase Enzyme Drops”;
and “COLIX may be used from birth”. Both the complainant and the respondent were given an opportunity
to comment on the appropriate sanction to be imposed.
On 1 July 2011 the ASA Directorate imposed sanction in terms of Clause 14.1 of the Procedural Guide in
which the respondent was instructed to withdraw the offending claims in their current format.
SUBSEQUENT TO THE RULING
On 29 July 2011, Adams & Adams attorneys, on behalf of the complainant, lodged a breach allegation. It
submitted, inter alia, that despite the fact that over a year has passed since the initial ruling, the
respondent’s product continued to be widely sold throughout the country in packaging bearing the offending
claims.
Photograph taken at Clicks store was annexed to the complaint. It submitted, inter alia, that packaging still
bears the claim “Contains no alcohol or sugar”. Given the shelf life of Colix products, it is highly likely that
this packaging was supplied to Clicks store after the deadline of 31 August 2010. Another photograph was
taken at a Dischem pharmacy in Balito and both the “old” and the “new” COLIX packaging still appears on
the shelves.
The complainant further submitted, inter alia, that it had also obtained a sample of COLIX products
purchased from Baker street pharmacy on 22 July 2011, together with an affidavit from Jackie Meyer
confirming that the product was supplied to her as recently as 14 July 2011.
It submitted, inter alia, that despite the original ruling and breach findings, the respondent continued to
supply the COLIX product in packaging bearing the offending claims. It is simply unacceptable for
packaging bearing offending claims to still be in the market place over a year after the ASA Directorate
ruling. The Affidavit referred to above makes it clear that the respondent is continuing to supply product in
this packaging without any regard or respect for the ASA’s initial findings.
The complainant accordingly requested the ASA Directorate to find the respondent in breach of the
Directorate ruling of 31 May 2010 and impose the harshest of sanctions available.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation the Directorate considered Clause 15 of the Procedural Guide
(Enforcement of rulings) as relevant.
RESPONSE
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
22
Attorneys Roestoff and Kruse, on behalf of the respondent, submitted, inter alia, that in order to find it in
breach, the complainant would have to prove that the respondent disseminated the offending packaging
into the trade after the required deadline.
There is no proof as to veracity of the photographs relied on by the complainant, and the affidavit from Ms
Meyer merely confirms that the product was purchased from Alpha Pharm, a wholesaler.
The complainant had done nothing to prove that the respondent disseminated any COLIX product into
trade after the deadline. The latest breach allegation is a waste of time and effort, and should be dismissed.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the
Directorate or the ASA Committees lies with the person against whom such ruling has been made”. This
implies that it is the duty of the recipient of an adverse ruling to ensure that it complies. Given that the
dispute at present relates to packaging, the first concern for the Directorate is whether or not there is
evidence to show that the respondent has disseminated the offending packaging after the relevant deadline
(in this case 31 August 2010).
The complainant supplied the Directorate with an affidavit of Jackie Meyer from Baker Street pharmacy
confirming that the COLIX product was supplied to her recently as 14 July 2011. The affidavit states “…
that Baker Street pharmacy purchased 2 units of COLIX DROPS from Alphapharm Pretoria on the 14th
July 2011”.
The Directorate also received confirmation from Dischem that it had discontinued the product and what is
had left on its shelves will gradually be returned to its DC or to supplier. It was further stated that the
product is no longer an official listed stock item in its stores. While this noted, it does not show that the
respondent disseminated stock to Dischem subsequent to 31 August 2011. At best, it merely indicates that
Dischem still had some stock at the time of the breach allegation.
In the absence of clarity from the complainant as to which Clicks store still stocked the product, the
Directorate was unable to determine when the stock at Clicks was received, or disseminated.
As such, the only concrete information supplied in the breach allegation was that of Ms Meyer in relation to
the Baker Street Pharmacy.
In KEYNOTE Trading & Investment / Crosscare / 15333 (13 April 2011), the Directorate stated, inter alia,
that:
“The Blairgowry pharmacy at which the product was purchased is in fact an Alpha Pharm Pharmacy, as is
evident from the www.alphapharm.co.za website. As such, the fact that the Blairgowry Alpha Pharm
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
23
pharmacy obtained the product from its own wholesaler, Alpha Pharm Pharmaceutical Wholesalers, is not
necessarily material, unless there was something to show that Alpha Pham Wholesalers obtained this
product subsequent to 31 August 2010”.
A preliminary search into www.alphapharm.co.za website revealed that Baker Street pharmacy is listed as
one of Alpha Pharm pharmacies (see http://www.alphapharm.co.za/storelocator.html?rg=GP&tc=Edenvale&stid=87). The Affidavit of Jackie Meyer therefore at best confirms that
the stock was obtained from Baker Street Pharmacy’s own wholesaler, which again does not prove that the
respondent disseminated such stock subsequent to the relevant deadlines.
Given the above and in the absence of any indication or evidence that the respondent had disseminated
the packaging with offending claims after the deadline, it cannot be said that the respondent has breached
the original ruling.
The breach allegation is therefore dismissed.
KNORR DEMI GLACE / S KERR / 17947
Ruling of the : ASA Directorate
In the matter between:
Simon Kerr Complainant(s)/Appellant(s)
Unilever South Africa (Pty) Ltd - Respondent
11 October 2011
Mr Kerr lodged a consumer complaint against packaging for Unilever’s Demi Glaci Sauce.
The packaging features an image of lamb chops with sauce over it.
The product is labelled as “Premium Demi Glace Sauce” and adjacent to this carries logos reflecting
“REDUCED SALT”, “NO MSG ADDED” and “YIELDS 10 LITRES.”
The ingredients are listed as: “Modified corn starch, salt, hydrogenated vegetable fat, maltodextrin, dried
vegetables (tomato, onion), flavours, modified potato starch, yeast extract, caramel colour, sugar, spices
(white pepper, sweet red paprika), citric acid.”
COMPLAINT
In essence, the complainant submitted that the packaging is misleading as the product does not contain
veal stock or any other meat stock. Demi Glace is known to comprise of veal stock (or in some instance
chicken stock) and “sauce espagnole”. If one cannot call sparkling wine Champagne, then surely one
should not call “brown goooyey stuff” Demi Glace, especially if the prefix “Premium” is used.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
24
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:
• Section II, Clause 4.1 - Substantiation
• Section II, Clause 4.2.1 - Misleading claims
RESPONSE
The respondent submitted that Demi Glace sauce is a French traditional sauce base made famous by the
French chef Auguste Escoffier. It is a rich brown sauce in French cuisine used by itself or, more often, as a
base for other sauces. It is made traditionally by combining equal parts of veal stock and sauce espagnole
which takes a considerable amount of time.
Due to the considerable effort involved in making traditional demi-glace, it has become common for chefs
to substitute a simple jus lié of veal stock, or to create a simulated version. There are also recipes available
for chicken demi glace, beef Demi Glace, and vegetarian Demi Glace.
To accommodate the fast pace and people’s different needs in times of today, concentrates and mixes are
another way of avoiding the labour inherent in preparing the sauce. The words “Demi Glace” refer to the
glossy look that the sauce has and it does not have any reference to meat or veal in the name.
The reality is that it is a powdered sauce product used as a quick fix. Other than professional chefs and
keen gourmands, the hypothetical reasonable person would not know specific differences between the
traditional recipe and ready-to-make products in the market unless they are already exposed to the
professionally made Demi Glace in restaurants, studied cooking or are interested in making their own. The
ingredient list clarifies the content of the product for them. The respondent also relied on the ruling issued
in the matter Smoked Haddock / H Wood / 10350 (8 April 2008).
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
In terms of Clause 4.2.1 of Section II, “Advertisements should not contain any statement or visual
presentation which, directly or by implication, omission, ambiguity, or exaggerated claim is likely to mislead
consumers”.
The essential issue to consider is whether the reference to “Premium Demi Glace Sauce” would mislead
people for the reasons elaborated on by the complainant.
From the submissions at hand it appears to be common cause that Demi Glace sauce is known to be a rich
brown sauce used by itself or as a base for other sauces, and traditionally made from combining equal
parts of veal stock and sauce espagnole. There also appears to be some agreement that chicken stock
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
25
could be used as a substitute for veal.
The respondent submitted that, traditionally, Demi Glace is made by combining equal parts of veal stock
and sauce espagnole, and that this takes a considerable amount of time. It added that to avoid the inherent
labour one can use a ready made product that it makes.
The Directorate accepts that the respondent’s product is sold as a convenience product in a powdered
form, meant to be bought as a “quick fix”. It is also aware that Demi Glace, when prepared according to its
authentic preparation method may take several hours. It is for this reason that it considered various other
recipes on the internet that could be prepared at home for easy convenience.
A google search for easy Demi Glace recipes, brings up a web page
http://www.cdkitchen.com/recipes/recs/11/Mock_DemiGlace53634.shtml
The information here states, inter alia, “Mock Demi-Glace Recipe” and lists the preparation time as less
than 30 minutes. The required ingredients are “butter, all purpose flour and beef broth.” (Our emphasis)
Websites such as http://www.i-hate-cooking-recipes.com/making-a-demi-glace.html confirm that one can
use beef bases, which are condensed stocks as a substitution. Other sites suggest substituting veal bones
for beef based stock or beef gravy. See attachment available on
www.saca.co.za/uploads/files/How%20to%20chef%2016.pdf.
This is significant as even an uncomplicated / mock recipe requires some sort of meat broth to be used as
an ingredient. This confirms that Demi Glace is understood to be combined with meat or meat stock, or at
least that the likely expectation from a person looking for Demi Glace sauce would be that it contains some
measure of meat.
Other than relying on the fact that its product is a “quick fix” product, the respondent has not elaborated on
why it chose not to include some measure of meat in its Demi Glace sauce. It also made passing reference
to the Directorate’s ruling in the matter Smoked Haddock / H Wood / 10350 (8 April 2008).
In this matter, the Directorate was asked to determine whether references to “… SMOKED HADDOCK
Fillets …” on packaging was misleading by virtue of the fact that the fish in question was actually hake.
During the investigation it transpired that the practice of selling hake treated with Annatto as “haddock” had
been going on for more than 50 years with approval from the Department of Health. Some of the main
reasons for this was that the haddock species was exceptionally scarce, and that South African consumers
had, by now, grown accustomed to perceiving hake treated with Annatto as haddock. The Directorate, inter
alia, ruled as follows:
“The respondent submitted that the practice is permitted by the Department of Health and the South African
Bureau of Standards as the United Kingdom haddock has not imported to South Africa for over 50 years. In
order to protect the consumers, food producers are required to disclose that the product is hake on the
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
26
ingredients list.
From the respondent’s submission and the SABS’s opinion, the Directorate accepts that there is a certain
type of ‘white fish’ found only in the North Atlantic, which is well known in the United Kingdom as Haddock.
However, the import of such a fish has not taken place in South Africa for more than 50 years.
Most South Africans who have been purchasing haddock for the past few years have in fact been
purchasing hake that has been treated with the food colourant Annatto. However, in order to inform or
protect those that have been exposed to the United Kingdom haddock, the SABS stipulated that all panel
should declare the product as hake on its ingredients list.
The Directorate is of the view that the only consumers who will know that there is a difference in the two
types of fish are those to have been overseas or have been exposed to it before. Even if that is the case,
those consumers are informed that the South African haddock is actually hake coloured with Annatto”.
On this basis the complaint was dismissed.
The above decision, however, does not automatically apply to the current dispute.
Unlike in the Haddock matter, the responded does not appear to be faced with a situation where its practice
of referring to its product as “Premium Demi Glace Sauce” as such despite the lack of any meat content
(whether veal or otherwise) is sanctioned by the Department of Health or any other regulator.
In addition, there is nothing before the Directorate to suggest that there is a scarcity of veal / beef / chicken
/ meat in the South African market to the extent that including such content in the respondent’s product
would be impractical or impossible.
Lastly, the Directorate is not convinced that the ingredients listed at the back of the packaging are a
sufficient remedy for the potential confusion or deception created by the product name. If anything, this
would correct the misleading impression initially created, which is contrary to the expectations of the Code.
It would appear that the respondent’s product is, at best, a Demi Glace flavoured sauce. However, the
claim “Premium Demi Glace Sauce” creates an impression that is not matched by the actual contents.
The reasonable expectation that the product contains some meat constituent as a key component of Demi
Glace sauce is therefore likely to mislead in a manner that contravenes the provisions of Clause 4.2.1 of
Section II of the Code.
Given the above finding:

The packaging and reference to “Premium Demi Glace Sauce” must be withdrawn in its current
format;
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
27

The process of withdrawing the packaging and reference must be actioned with immediate effect;

The process of withdrawing the packaging and reference must be completed within the deadlines
stipulated by Clause 15.3 of the Procedural Guide, and

The packaging and reference may not be used again in this format in future.
In light of the above decision, it is not necessary for the Directorate to consider Clause 4.1 of Section II at
this stage.
The complaint is upheld.
LG TV / D VORSTER / 18337
Ruling of the : ASA Directorate
In the matter between:
Mr Dewald Vorster - Complainant(s)/Appellant(s)
LG Electronics (PTY) LTD - Respondent
11 October 2011
Mr Vorster lodged a consumer complaint against the respondent’s packaging and website advertisements
for a 32LE 5500 LED LCD television.
No specifics were provided as to where on the website www.lg.com the respondent saw the advertising he
disputed. However, the respondent attached a photograph of the box containing the television. This
showed, inter alia, icons with product features which included “LED”, “Netcast”, “Bluetooth”, “Wireless AV
Link”, etc.
For the sake of clarity, the photograph was not clear enough for the Directorate to make out anything
indicating that the television claims to be “DLNA certified”. However, on http://www.lg.com/za/tv-audiovideo/television/LG-led-lcd-tv-32LE5500.jsp, this logo is visible.
COMPLAINT
In essence, the complainant submitted that the product is “… advertised as wifi and that it is DLNA
certified”. According to the complainant, www.dlna.org does not list this product, thus negating the claim
that it is certified. What is more, the television does not have wifi. One needs to buy an additional dongle at
R1300 in order to make it wifi.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
28
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Clause 4.2.1 of Section II (Misleading claims) of the Code was taken into account.
RESPONSE
The respondent denied the allegation that the product is not DLNA certified. It attached DLNA Test
Certification for LED LCD TV Model/SKU 32/37/42/47/55/60LE5500 which confirmed that the product is
DLNA certified.
The respondent also denied the complainant’s allegation insofar as the Wireless capability of the product is
concerned. It confirmed that the product is capable of Wireless functionality. It also pointed out that the
claim made is “Wireless AV Link”, indicating the LAN functionality. The owner’s manual clearly states that
separate purchases are required for Wireless LAN for broadband / DLNA Adaptor and external equipment
setup. The adaptor is available at selected retailers through its extensive national service network at a
recommended retail price of R399,00 excluding VAT. The adaptor (dongle) and Wireless Media Box are
accessories.
The respondent further elaborated on how its wireless connection operated and is set up.
ASA DIRECTORATE RULING
Clause 4.2.1 of Section II states that advertisements should not contain any statement or visual
presentation, which directly or by omission, ambiguity or exaggerated claim, is likely to mislead the
consumer about the advertised product.
While technically speaking the complainant was factually incorrect in stating that the advertising claimed
“wifi”, it appears common cause between the parties that the reference to “wireless” is somewhat
synonymous with “wifi” and that the reference to “wireless” is actually at issue. In addition to this, the
question of the DLNA certification also comes into the equation.
A quick search into the website, www.dlna.org/products revealed that the product in question is listed as
one of the product that are DLNA certified. The respondent also furnished a DLNA Test Certification to
prove that the product is indeed DLNA certified.
Accordingly this issue falls away.
Insofar as the claim “Wireless AV Link” is concerned, the Directorate is satisfied that this indicates
capability, rather than a pre-existing functionality. In essence, the respondent is indicating that it has a
“Wireless AV Link” that users could use, should they opt to.
Put differently, the respondent is pointing to the fact that it has the link, or port, that one would have to use
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
29
in the event that one wants to connect wirelessly to the television. This does not automatically mean that a
wireless connection could be established without the necessary equipment for sending / receiving signals.
Accordingly, it cannot be said that the advertisement is misleading in the manner suggested by the
complainant. As such, it is not in contravention of Clause 4.2.1 of Section II of the Code.
The complaint is dismissed.
MICROSLIM / HA STEINMAN / 17632
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
BoundlessTrade 149 (Pty) Ltd t/a Microslim - Respondent
12 October 2011
Dr Steinman lodged a consumer complaint against the respondent’s print advertisement appearing in the
MNet Magic magazine.
The advertisement features an image of a model dressed in a bikini, and the headline “10 kilos in the Blink
of an Eye”. It describes the Microslim product as “… the culmination of more than 14 years of international
research …” and contains, inter alia, the following claims:
“It contains only natural ingredients which are combined into a unique formulation, which our customers say
doesn’t only help them to slim, but also helps to correct their metabolism while it increases their energy
levels.
Microslim’s new unique formulation helps you to eat less which prevents fat from forming, burns excess fat
rolls and cellulite and helps to make your body firmer and leaner. It contains 4 different fibres which have
been found to lessen calorie absorption & regulates your stomach … Our unique formulation is formulated
to help your body to burn up what it takes in and to normalize your metabolism. Microslim will lessen your
appetite, lessen your cravings for sweet things and will leave you bursting with a lot of energy”.
A “Medicine Control Council of SA Registration Number” of “017201/101/1695” is also quoted.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint, the following clauses of the Code were taken into consideration:
• Section II, Clause 4.1 – Substantiation
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
30
• Section II, Clause 4.2.1 – Misleading claims
COMPLAINT
In essence, the complainant submitted that the respondent is well aware of the requirements insofar as
substantiation are concerned. The advertising at issue contains a host of weight loss and related claims
which are not substantiated based on “evidence-based proof” and are therefore misleading to the average
consumer.
The complainant added that the alleged MCC registration number is exactly the same as that quoted for
the respondent’s Be-Trim and Easythin products. He also clarified that the product is not registered with the
MCC.
Given the respondent’s repeated pattern of making unsubstantiated weight loss claims, sanctions and an
Ad Alert are in order, specifically insofar as the Mnet magazine is concerned.
RESPONSE
Ms Sandy Brittz, a representative of the respondent, submitted arguments as to why she believes in the
“Be-Trim Budget Weight Loss System”, and how this system worked for her. She also referred to satisfied
clients and invited the ASA to contact these clients, who will attest to the efficacy of Microslim.
Insofar as the MCC registration number is concerned, she clarified that “The Be-Trim Budget System has
been registered with the MCC for many years under the Registry number 17205. For some strange reason
there appeared to be a printing error in the advert that Dr Steinman is referring to. The number that is
printed there is 017201 which is registered to one of our other products called Slinky Slim. I apologise for
this mistake …”. In addition, it was explained that the respondent decided in 2000 to market its Be-Trim
product under the name Microslim, offering a buy one get one free promotion to cater for people who are
battling financially. It had to use the new name in order to know when a customer would qualify for the buy
one get one free promotion.
An article entitled “New Findings on Fibre” from “LE Magazine May 2005” was also submitted.
ASA DIRECTORATE RULING
At the outset it should be noted that this respondent has received several adverse rulings on the basis of
not holding any substantiation as required in terms of Clause 4.1 of the Code. The complainant has also
correctly noted that the respondent is a repeat offender, and should be well aware of the requirements for
substantiation.
Without having to dwell on this issue, the Directorate notes that in Organo Slim / A Blom / 16330 (4 August
2011) the Directorate imposed a sanction in terms of Clause 14.3 of the Procedural Guide on the
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
31
respondent. The Directorate specifically pointed out that this sanction (which involves the respondent
obtaining pre-approval for all its products across its entire range for a period of one year) was as a result of
the respondent’s deliberate disregard for the Code.
As a result of the ruling issued on 4 August 2011, an Ad Alert was also issued to media members, advising
them not to accept any advertising from Boundlesstrade 149 and/or Organoslim and/or BeTrim and/or
Microslim and/or SlinkySlim and/or EasyThin (the names of the respondent’s other products) whatsoever
unless it is accompanied by confirmation from the ACA Advisory Service that it may be published.
Given this, the Directorate is satisfied that the existing sanction is adequate insofar as the request for
sanctions and an Ad Alert were made by the complainant. The only remaining issue is whether or not this
advertisement is acceptable. Before dealing with this, however, it should be noted that this complaint was
received prior to the sanction being imposed, and is therefore not retrospectively affected by it.
As has apparently become standard procedure for the respondent, no substantiation was submitted that
would satisfy the requirements of Clause 4.1 of Section II. In fact, other than the article (which does not
appear to necessarily even relate to the respondent or its product), no documentary evidence of any nature
was supplied. In addition, no evidence of any alleged registration or approval with the MCC was submitted.
Based on this, the advertisement is clearly in contravention of Clause 4.1 of Section II of the Code by virtue
of the fact that the weight loss and related claims disputed are not substantiated. Likewise the reference to
being registered with the MCC is also unsubstantiated.
As a result, the advertisement is also likely to mislead people and is therefore in contravention of Clause
4.2.1 of Section II of the Code.
Based on the above, the respondent is required to:

Withdraw the advertisement and all relevant claims that gave rise to this dispute;

Action the withdrawal of the advertisement and claims with immediate effect upon receipt of this
ruling;

Ensure that the advertisement and claims are withdrawn within the deadlines stipulated in Clause
15.3 of the Procedural Guide; and

Not use the advertisement or claims in their current format again in the future.
The complaint is upheld.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
32
NATRODALE ROYAL JELLY / M WALKER / 18511
Ruling of the : ASA Directorate
In the matter between:
Mrs Marcia Walker - Complainant /Appellant(s)
Adcock Ingram Healthcare (Pty) Ltd - Respondent
3 October 2011
Mrs
Walker
lodged
a
consumer
complaint
against
http://Natrodale.co.za/index.php?page_id=5&cat_id=9&prod_id=45.
the
The
website
website
advertisement
advertises
on
the
respondent’s Natrodale Royal Jelly and states, inter alia, that the product is “Free From: Preservatives,
artificial colours and flavours, gluten, lactose and yeast”.
COMPLAINT
In essence the complainant submitted that the advertisement claims that the product is free from gluten,
however it contains a large amount of wheatgerm oil, which contains gluten. People suffering from Celiac
disease cannot ingest anything with gluten in it, and could be misled.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Clause 4.2.1 of Section II (misleading claims) was considered relevant.
RESPONSE
The respondent clarified that it acquired the Natrodale range products from Nutrilida in August 2011, who in
turn acquired the product range from Vital Health Foods towards the end of 2010. Vital Health continues to
manufacture the products on behalf of the respondent.
Section 46 (1)(a)(iii) of Government Gazette No 32975 dated 1 March 2010, provides that “the claim
‘gluten-free’ shall only be permitted on a foodstuff that does not contain … an ingredient that is derived
from any of the aforementioned significant cereals which has been processed to remove gluten so that the
use of that ingredient results in the presence of more than 20 mg/kg (ppm) gluten in the end product”.
The product was sent to Food & Allergy Consulting & Testing Services (FACTS), an independent
laboratory to determine levels of gluten in the Natrodale Royal Jelly product. According to the report from
FACTS, this product tests at a presence of less than 2,5 ppm, which indicates very little, or no gluten, as
the levels are too low to be detected. A copy of the FACTS report was submitted to the ASA.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
At the outset, the Directorate emphasises that the responsibility in terms of what is permitted in terms of
food labelling falls with specific regulatory authorities, and not the ASA. These authorities have, over time,
drafted specific guidelines and in most instances regulations, which are appropriate and applicable. The
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
33
duty of the ASA in this instance is therefore not to determine whether or not such legislation is complied
with, but whether or not the advertising at issue is likely to mislead a hypothetical reasonable person.
Clause 4.2.1 of Section II of the Code states, “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 Directorate in this instance has to determine whether or not the claim “free from: ... gluten” is
misleading by virtue of the fact that the product appears to contain wheatgerm oil, which the complainant
alleges contains gluten.
While the respondent did not argue the point insofar as wheatgerm oil is concerned, it submitted a report,
which shows that on independent testing, its product was found to have levels of gluten which are
substantially below what is permitted in terms of the relevant regulations, therefore justifying the claim that
it is free from gluten. The report emanates from FACTS.
From its website www.factssa.com, it is noted that FACTS laboratory “… is the first in South Africa (and
one of few worldwide) to be able to detect and quantify traces of contaminant allergens in food products. In
addition to providing a reliable result, our expertise allows us to interpret our findings and to recommend
practical solutions. FACTS offers a variety of food allergen testing options, the most frequently requested
being gluten, egg, milk and soy. FACTS staff consists of a team of experts with medical, life science,
dietetics, food science, educational and commercial knowledge. It offers allergen testing for barley, celery,
crustaceans, shrimp species, egg, fish, gluten, milk, mustered, oats, peanut, rye, soya, sesame seed,
wheat and tree nuts”.
The report concludes that “the sample of Royal Jelly Capsules tested for values of gluten below the lowest
limit of quantification of the ELISA (>2.5 ppm gluten). These results indicate that there might be zero or
very low presence of gluten proteins in these samples, too low to be accurately detected using ELISA.”
This appears to justify the respondent’s claim that its product is “Free from: … gluten …” insofar as the
relevant legislation allows for it to make such a claim.
Considering this report, it would appear that the respondent’s product has less than 2,5 parts per million
gluten. Put differently, less than 0,0000025% of the product is possibly (because FACTS could not test at
levels lower than this) gluten.
In Becks Non Alcoholic Beer / BG Flemming / 10837 (10 July 2008), the Advertising Standards Committee
(the ASC) considered advertising claiming that a beer, which contained 0,03% alcohol, was “non-alcoholic”.
The ASC, in ruling that the claim was acceptable held, inter alia, as follows:
“Even on a mathematical calculation, it is not misleading to say that a beverage containing less than 0.5%
alcohol is non-alcoholic or is alcohol-free because it is a universally accepted method of calculating to
round off numbers to the nearest whole, in this instance being 0.0%”.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
34
It was also noted at the meeting that applicable legislation allows for beverages with an alcohol content of
less than 0,5% to be marketed as “non-alcoholic”.
From the information at hand, the respondent’s product not only complies with relevant legislation, but in
fact has such low levels of gluten (if any) that it cannot be detected even at concentrations of 2,5 ppm.
Adopting the approach of the ASC, the respondent’s gluten levels (assuming they were as high as 2,5 ppm,
which is not even the case) would still round off to 0,00000%.
In light of the above, the respondent appears to be justified in its claim “Free from: … gluten …”. The claim
is therefore not in contravention of Clause 4.2.1 of Section II of the Code.
The complaint is dismissed.
OUTSURANCE / C THOMAS / 16933
Ruling of the : ASA Directorate
In the matter between:
Mr Keegan Thomas - Complainant(s)/Appellant(s)
Outsurance Insurance Company Limited - Respondent
7 October 2011
Mr Thomas lodged a consumer complaint against the respondent’s internet advertising seen on
www.yahoo.com. The advertisement appeared when the complainant was logged into his account.
The advertisement is in a form of a slideshow with each slide containing different statistics. The respective
slides carry the following wording:

“Today 142 working South Africans will become disabled”;

“Today 209 South Africans will be diagnosed with cancer”;

“Are you sufficiently covered?”;

“Get disability and critical illness cover now! CLICK HERE …” with the respondent’s logo and the
statement “For death, disability and critical illness cover”.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
35
COMPLAINT
In essence, the complainant submitted that the respondent cannot predict the future and as such the
wording is incorrect. It was submitted that the respondent is trying to bring fear to the public in order to
convince them to get its product.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Clause 3.1 of Section II (Fear) was taken into consideration.
RESPONSE
Attorneys Hardam & Associates Inc., on behalf of the respondent, submitted, inter alia, that the main goal
of the advertisement is to draw the consumer’s attention to the possibility of either being involved in a
disability event, or alternatively to be diagnosed with some form of cancer on a daily basis. In no manner is
it attempting to “predict” the future and the numbers quoted have been received from independent reliable
survey, research and actuarial data.
The number of working South Africans involved in a disability event on a daily basis was obtained from a
November 2010 study compiled by The True South Actuaries and Consultants Bureau of Market Research
(UNISA) in a study entitled “The SA insurance gap”. This report calculates this figure at 144 per day across
South Africa.
The figure 209 South Africans that will be diagnosed with some form of cancer per day is a conservative
figure, calculated based on an “Overview of the South African Cancer Research Environment as a basis for
discussions concerning the activation of CARISA (Cancer Research Initiative of South Africa)”, compiled by
Dr Carl Albrecht, an independent medical research consultant. This report was compiled in August 2006
and ultimately calculates the accurate figure of cancer incidences (diagnosis) in South Africa per year as
114 507, which amount to a total of 313 people being diagnosed with cancer daily. In order to be
conservative with the figure the respondent took two-thirds thereof, which amounts to 76 338 incidences
per year, or 209 per day assuming a yearly cycle of 365 days. The respondent added that these figures
and in fact the report by Dr Albrecht are the most recent available insofar as South Africa is concerned.
It emphasised that the above information is extremely relevant and applicable to the insurance market.
The respondent argued that it is an established principle that advertising needs to be considered
objectively from the viewpoint of the hypothetical reasonable person who is neither overcritical nor
hypersensitive. In addition, a reasonable person and the general consumer will have the requisite
intelligence to bear in mind the importance and necessity of having adequate insurance cover for disability,
death and critical illness, and also be able to realise that the numbers mentioned in the advertisement are
not exaggerated, taking into account that the South African population consists of approximately 45 million
people.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
36
When considering the advertisement within this, taking into account the medium, likely audience, nature of
the product or service, prevailing standards, degree of social concern and public interest, a consumer
would not perceive the message as fearful or frightening. In fact, the advertisement merely seeks to bring
to the consumer’s attention the extremely high number of cancer and disability events which actually occur
on a yearly/daily basis, something that many consumers may take for granted, or simply have an attitude
that such an event will not befall them or any family or friends of theirs.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
The Directorate needs to determine the probable impact of the advertisement on the hypothetical
reasonable person. This fictional, reasonable person is the normal balanced right thinking person who is
neither hypercritical nor over sensitive.
The complainant submitted that the advertisement is trying to bring fear to the public and therefore
consumers must purchase its product.
Clause 3.1 of Section II of the Code states, “advertisements should not without justifiable reason play on
fear.”
The purpose of Clause 3.1 of Section II, as established in existing rulings, is to prevent advertisers from
exerting undue influence upon consumers through the exploitation of fear. This was best illustrated in
Clientele Life Assurance / T Byrne & Others / 7612 where the Advertising Standards Committee (the ASC)
ruled as follows:
“… by virtue of its graphic nature and its overall execution, the commercial is likely to induce shock, fear
and distress in the average viewer, regardless of age, with the aim of inducing persons who might not
otherwise be inclined to do so, to take out life assurance cover. In so doing, we are of the view that the
commercial without justifiable reason plays on the fear of the average consumer”.
Further to this, the ASC held:
“Had the commercial been a public interest execution whose purpose and aim was to prevent reckless
driving and to save lives … the advertisers’ play on fear may have been justified. However, this is not the
purpose of the commercial. It does not seek to curb death or injury by car accident but in effect to exploit
such occurrences by urging consumers to “prepare” themselves for such occurrences. It seeks to persuade
persons, through the use of fear, who for a range of reasons, including in many instances lack of financial
means, may not otherwise have bought life assurance, to buy such cover”.
In Cellfind / E Breytenbach / 1402 (5 September 2005), the Directorate considered a complaint against a
television commercial staging a hijacking scenario, followed by an explanation about the nature of the
product. The Directorate ruled that the overall message of the commercial was not one of “buy this product,
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
37
or you or your family will die”. Instead, it communicated the service and capabilities to interested
consumers by depicting a prevalent crime in South Africa. On this basis the complaint was dismissed.
In this matter, the Directorate is of the opinion that the advertisement does not exploit the element of fear to
encourage people to purchase its disability insurance or critical illness cover, but rather reveals figures
relevant to such conditions. If anything, it reminds people of the fact that they should consider whether their
cover is adequate, and offers them an opportunity to prepare for such undesired eventualities.
On an objective reading of the advertisement, the likely take-out would not be one of “I will be diagnosed
with cancer” or “I will be permanently disabled”, but rather, the realisation that these are representative
figures that I should take into account. Unlike the Clientele matter discussed above, the respondent is not
inducing shock or fear or a scare-tactic to elicit sales. It is merely providing information based on, what
appears to be, legitimate research, and presenting the consumer with an option to utilise its services.
In light of the above, it is the Directorate’s view point that the advertisement does not use the fear element
without justifiable reason. Therefore the advertisement is not in breach of Clause 3.1 of Section II of the
Code.
The complaint is dismissed.
_____________________________________________________________________________________
OUTSURANCE / D JOOSTEN / 16917
Ruling of the : ASA Directorate
In the matter between:
Mr David Joosten - Complainant(s)/Appellant(s)
Outsurance Insurance Company Limited – First Respondent
4 October 2011
Mr Joosten lodged a consumer complaint against the respondent’s television commercial for Outsurance
insurance flighted on, inter alia, MNET HD.
The commercial is set in an “Outsurance lift”, where two advertising agents attempt to convince their client
(Outsurance) to use a specific concept. While they explain, the commercial changes to reflect what they
are proposing. The concept they pitch involve a “highly stressed businesswoman” drying her hair when
suddenly her cellphone rings, while on the phone she grabs her pepper spray instead of hair spray. She
then starts to choke and rushes outside to get some air. As she steps onto the balcony she trips on a mat
and falls off the balcony. The client rejects the idea as “ridiculous” and explains that the proposed
advertising should contain the facts, with a clear and solid message.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
38
COMPLAINT
In essence, the complainant submitted that the commercial is violent and makes fun of death and pain. The
commercial is not broadcast during age restricted shows.
COMPLAINANT’S COMMENTS ON SANCTIONS
The complainant was afforded an opportunity to comment on whether sanctions are necessary and if so,
which sanction(s) should be imposed.
Clear Copy, on behalf of Cell C, advised the Directorate that it is not pursuing the request for sanctions in
this matter.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:
• Section I, Clause 1.2 – Responsibility to the consumer
• Section II, Clause 1 – Offensive advertising
• Section II, Clause 14 – Children
RESPONSE
Hardam & Associates Inc. attorneys, on behalf of the respondent, submitted, inter alia, that the intention of
the commercial is to show the respondent’s innovative and creative marketing strategy which should be
employed to promote its new life insurance product which has recently been launched.
The general theme is satirical and of a humorous nature. Looking at the manner in which the woman meets
her death, it is clear that it is extremely unlikely for such an accident to occur, given how far-fetched the
scenario is, lending more weight to the satirical nature of the advertisement.
It submitted that the general consumer have the intelligence not to take humorous hyperbole in advertising
any more seriously than what they would take a cartoon or movie. The respondent further argued that it is
important that when considering the advertisement that amongst other factors the context, medium, likely
audience, nature of the product or service, prevailing standards, degree of social concern and public
interest must be taken into account.
It is an established principle that advertising needs to be considered objectively from the viewpoint of the
hypothetical reasonable person who is neither overcritical nor hypersensitive. Further, the Code requires
the ASA to consider the commercial as a whole and pay due regard to, inter alia, surrounding
circumstances when considering the likely impact of advertising on those who are likely to be exposed to it.
The commercial is clearly meant to come across as humorous and light hearted and constitutes harmless
parody which is intended to amuse and cannot be reasonably viewed as making a mockery of death and
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
39
pain. It should also be kept in mind that this commercial was flighted for more than two months on an
extensive basis, yet only elicited this one complaint.
ASA DIRECTORATE RULING
Children
Clause 14 of Section II states, inter alia, that advertising should not cause children mental, physical,
emotional or moral harm. The possibility of such harm in the current matter lies in the fact that children
should not be exposed to potentially unsuitable material.
The source of the complainants’ concerns insofar as children are concerned appears to be that the
advertisement was shown on broadcasts that did not have an age restriction, and therefore would likely
also be seen by children.
The commercial does not expose children to what can reasonably be regarded as unsuitable material.
While true that the woman falls from the balcony, the entire situation is far-fetched to the extent that
children would not interpret it with the same amount of realism as, for example, footage on the evening
news would be interpreted. The respondent also correctly noted that the commercial is no more “violent”
than cartoons that are shown to children on a daily basis.
In light of this, it is unlikely that the commercial would cause the hypothetical reasonable child harm.
Accordingly, the television commercial is not in breach of Clause 14 of Section II of the Code.
Offensive advertising
The Directorate acknowledges that visuals depicting people being injured, killed, or experiencing traumatic
events is a sensitive issue. However, it is an established principle that advertising should be considered
from the viewpoint of the hypothetical reasonable viewer or listener. This fictional, reasonable person is the
normal balanced right-thinking and reasonable person who is neither hypercritical nor over sensitive.
In terms of Clause 1 of Section II no advertising may offend against good taste or decency or be offensive
to public or sectoral values and sensitivities, unless the advertising is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom.
This clause adds that advertisements should contain nothing that is likely to cause serious or wide-spread
or sectoral offence. However, the fact that a particular product, service or advertisement may be offensive
to some is not in itself sufficient grounds for upholding an objection to an advertisement for that product or
service. It provides guidance in stipulating that when considering whether an advertisement is offensive,
consideration must be given, inter alia, to the context, medium, likely audience, the nature of the product or
service, prevailing standards, degree of social concern, and public interest.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
40
It is not clear from the complaint before the Directorate as to what is offensive in the commercial. The
Directorate agrees with the respondent’s contention that the advertisement is clearly meant to come across
as humorous and light hearted, and constitutes harmless parody which is intended to amuse rather than
make a mockery of death and pain.
While the Directorate accepts that all people would not necessarily regard references to death as suitable
for personal reasons, the fact remains that the respondent has not gratuitously depicted this scenario, but
opted for a satirical, non-realistic situation to humorously convey its message. While it is utilising humour,
the commercial does not “make fun” of, or disrespect death and pain as the complainant suggests.
In light of the above, the commercial is not in contravention of Clause 1 of Section II of the Code.
Responsibility to the consumer
Clause 1.2 of Section I stipulates that advertising should be prepared with a sense of responsibility to the
consumer.
In the current matter, the advertising can only be deemed to be irresponsible if the Directorate were to
establish that the content is inappropriate for children, or offensive. Both these concerns have been
addressed above.
Therefore the commercial is not in breach of Clause 1.2 of Section II of the Code.
The complaint dismissed.
OUTSURANCE / S MORRISON AND ANOTHER / 16836
Ruling of the : ASA Directorate
In the matter between:
MRS SABINA MORISON - Complainant(s)/Appellant(s)
MRS LC ESTERTHUIZEN - Complainant(s)/Appellant(s)
Outsurance Insurance Company Limited – First Respondent
10 October 2011
Mrs Morison and Mrs Esterhuizen lodged consumer complaints against the respondent’s television
commercial for Outsurance insurance flighted on SABC and e.tv.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
41
The commercial opens in the “OUTsurance office”, where a man reveals his “Launch plan” for the
respondent’s life insurance product, outlining the relevant benefits. His marketing team also present, then
describes a situation where a man is shown trying to hang up his trophy marlin when the ladder gives way
and he falls to the floor after which the marlin fish falls off the wall and impales the man. While they
elaborate, the man interrupts saying “It’s really graphic, and it says absolutely zip about anything that is
Outsurance …”. He then continues to list benefits of the product and of the respondent.
COMPLAINT
In essence, the first complainant submitted that the commercial is violent and the scary death suffered by
the man in the commercial is not suitable for general viewing and does not fit with the humorous nature of
the commercial.
The second complainant submitted that the commercial is disgusting and insensitive by making death of a
loved one a joke. It was submitted that the commercial is offensive.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

Section II, Clause 1 – Offensive advertising

Section II, Clause 3.1 – Fear

Section II, Clause 14 – Children
RESPONSE
Attorneys Hardam & Associates Inc., on behalf of the respondent submitted, inter alia, that as a result of
considering the concerns raised by the complainants in respect of the alleged “violent” and “scary” and
insensitivity in the commercial, it has amended the commercial and undertakes to not air the original
version again. The amendment will address and allay the concerns adequately, as it has largely removed
the portion of the scene with potentially graphic visual and audio elements of the gentlemen being impaled.
The respondent argued that only two complaints have been received in respect of the commercial in its
previous format. This indicates that the amended commercial does not concern people. In addition, the
fact that only two complaints were originally received indicates that the commercial was accepted in a light
hearted manner and did not in general offend the hypothetical reasonable person who is neither
oversensitive nor overcritical.
The commercial does not play on or exploit fear in a manner that is contrary to the Code, and is clearly a
far-fetched scenario, which lends weight to its humorous nature, meaning that no person would interpret it
as inducing fear to elicit the purchase of life insurance.
The commercial is promoting a life insurance product and the target market is clearly adults. It submitted
that the commercial is aired at times when children who do view the commercial will likely be supervised by
their parents at the time. It added that the humorous nature of the commercial will clearly come across
without resulting in any factual or imagined mental, moral, physical or emotional harm to a child.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
42
It also submitted that numerous television programmes and advertisements shown on television which
children are subjected to without parental supervision are substantially more graphic and violent than the
advertisement subject to this complaint.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
It should be noted, first, that the respondent undertook to amend the commercial and shall not be aired in
its original form, which it believes will address and allay the concerns of the complainants adequately.
While the Directorate notes the undertaking, it is not convinced that it would automatically remove the
concerns raised. While true that one no longer sees the fish fall on the man and his legs shake as a result,
we still hear the marketing team explain this event, and mention that he gets the marlin “straight through his
chest”. As such, the proposed amendment is not an adequate resolution and can therefore not be accepted
as the end of the matter.
The Directorate therefore has to determine whether the commercial in its complained of format is
problematic or in contravention of the Code.
Offensive advertising
Clause 1 of Section II states, “No advertising may offend against good taste or decency … unless the
advertising is reasonable and justifiable in an open and democratic society…”. It also clarifies that the fact
that a particular piece of advertising may be offensive to some is not sufficient grounds for upholding an
objection.
The Directorate is of the view that a reasonable person would, in the context of the commercial as a whole,
interpret the message as justified in driving the message to encourage people to have life assurance as an
important safety net for many families who experience the loss of a breadwinner. It is simply a product like
any other product. The decision to purchase life assurance is a decision which should be pondered by all
consumers, like with any other product.
While the Directorate accepts that the commercial has a light-hearted tone, this does not necessarily imply
disrespect to the event of losing a loved one or friend. The hypothetical reasonable person would realise
that the respondent is opting for a more “relaxed” and “up-beat” context in selling a product that people
might traditionally view as a grudge-purchase.
This in itself cannot be seen as a contravention of the Code, and would likely be interpreted correctly by
viewers in general. While the Directorate sympathises with the fact that one of the complainants recently
had to deal with deaths in the family, the commercial has to be considered from an objective viewpoint, and
cannot be ruled against on the basis of something as personal and individual as this.
Accordingly, the commercial is not offensive in manner suggested by the complainants, and
therefore not in contravention of Clause 1 of Section II of the Code.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
43
Fear
Clause 3.1 of Section II of the Code states, “advertisements should not without justifiable reason play on
fear.”
The purpose of Clause 3.1 of Section II, as established in existing rulings, is to prevent advertisers from
exerting undue influence upon consumers through the exploitation of fear. This was best illustrated in
Clientele Life Assurance / T Byrne & Others / 7612 where the Advertising Standards Committee (the ASC)
ruled as follows:
“… by virtue of its graphic nature and its overall execution, the commercial is likely to induce
shock, fear and distress in the average viewer, regardless of age, with the aim of inducing persons
who might not otherwise be inclined to do so, to take out life assurance cover. In so doing, we are
of the view that the commercial without justifiable reason plays on the fear of the average
consumer”.
Further to this, the ASC held:
“Had the commercial been a public interest execution whose purpose and aim was to prevent
reckless driving and to save lives,… the advertisers’ play on fear may have been justified.
However, this is not the purpose of the commercial. It does not seek to curb death or injury by car
accident but in effect to exploit such occurrences by urging consumers to “prepare” themselves for
such occurrences. It seeks to persuade persons, through the use of fear, who for a range of
reasons, including in many instances lack of financial means, may not otherwise have bought life
assurance, to buy such cover”.
The commercial in dispute does not contain any visuals of blood or graphic physical injury, the visual
content, and the execution of the commercial all combined are such that they are, in the Directorate’s view,
not likely to cause a sense of disquiet and shock in the average viewer and not just overly sensitive
viewers.
It is a light-hearted humour which does not play on fear but to show that unexpected situation might arise
and as such one has to prepare for the inevitable circumstance.
Therefore, commercial is not in breach of Clause 3.1 of Section II of the Code, as it does not,
without justifiable reason, play on fear.
Children
Clause 14.1.1.1 of Section II states that advertisements addressed to or likely to influence children should
not contain any statement or visual presentation which might result in harming them, morally, physically or
emotionally. It must also be noted that the Code regards children as “persons under the age of 18” (refer
Clause 4.10 of Section I).
The object of Clause 14 of Section II is essentially to prevent advertising that may harm children.
Advertising that is graphic in content must therefore be carefully placed so that children are not exposed to
it.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
44
The respondent argued that the commercial is aired at times when, in the event that children do view the
commercial, they will be supervised by their parents. It added that the humorous nature of the commercial
will clearly come across without resulting in any factual or imagined mental, moral, physical or emotional
harm to a child.
The possibility of such harm in the current matter lies in the fact that children could potentially be exposed
to material that is upsetting.
The commercial is clearly not aimed at children, and when one assumes that parents would generally be
able to contextualise any confusion that may arise, it is not likely to cause harm. In addition, the Directorate
cannot ignore the fact children often view cartoons and movies with content relating to characters being
bitten, electrocuted, flattened by large objects etc. in the absence of blood, screaming, ominous music and
other elements that would add to a frightening experience for a child, it is less likely that a child, even one
who is not accompanied by an adult, would be unduly harmed by this commercial.
Given the above, and given that the commercial is primarily targeted and aimed at an adult
audience, is not in contravention of Clause 14 of Section II of the Code.
The complaints are dismissed.
REUTERINA / ADCOCK INGRAM HEALTHCARE / 18242
Ruling of the : ASA Directorate
In the matter between:
ADCOCK INGRAM HEALTHCARE (PTY) LTD Complainant(s)/Appellant(s)
AKACIA HEALTHCARE (PTY) LTD – First Respondent
5 October 2011
Adcock Ingram Healthcare lodged a competitor complaint against the packaging of Reuterina Intestinal
health probiotic Acute, for the following claims:
 “FROM THE NO. 1 PRESCRIBED PROBIOTIC”;
 “… The doctors No. 1 prescribed probiotic!” and
 “Reuterina is the No. 1 prescribed probiotic in SA”.
The first claim appears on the respondent’s packaging for, inter alia, its chew tablets, whilst the second and
third were highlighted in a pamphlet promoting the respondent’s products (both drops and chew tablets).
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
45
COMPLAINT
In essence the complainant submitted that the respondent presumably relies on Impact-Rx data for
February 2011 to substantiate the above mentioned claim. This is inadequate and does not accurately
reflect the number of products prescribed but rather the number of products dispensed in pharmacy. The
credible source when it comes to the number of prescriptions per product, is NDTI data and according to
the NDTI data (Dec 2010) the number 1 most prescribed probiotic was Interflora (the complainant’s
product). The fact that pharmacists are entitled to substitute products prescribed by doctors with an
interchangeable product might skew the results insofar as Impact-Rx data is concerned.
The complainant submitted that the claims are misleading and exaggerated, and should be removed. While
the complaint refers to an “Annexure B1”, which allegedly contained the NDTI data (Dec 2010), it failed to
attach it.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complainant identified the following Clauses as relevant:

Clause 7.1 of Appendix A – Accuracy, balance, fairness of claims

Clause 7.2 of Appendix A – Exaggerated or misleading claims
RESPONSE
The respondent denied the complainant’s allegations, and submitted a verification letter from Catalyst
Market Research Specialists, the IMS National Disease & Therapeutic Index, as well as confidential reports
from Centrix, Innovations and Impact Rx to confirm that the claims are true. The respondent also pointed
out that Centrix Innovations measures doctors’ original prescriptions at the pharmacy level and the actual
sales out of the pharmacy, and is therefore a true reflection of the prescription of Reuterina; this data is
further collaborated by the IMS NDTI and Impact Rx studies.
Catalyst clarified that the IMS NDTI report relates to data from 384 doctors who keep diaries on their
prescriptions and treatments, whereas Centrix Innovations is the “only company in South Africa that
measures doctors’ original prescriptions at pharmacy level and sales out of pharmacy dispensary …”. It
clarified that 600 pharmacies and 19 231 script lines are measured, which represents 17% of all
pharmacies, which is a “big sample”. It added that Impact Rx measures “sales out of pharmacies based on
prescriptions” and that this data represents approximately 80% of the total private sector pharmacy
dispensary sales.
After discussing the relevant reports in brief, Catalyst concludes as follows:
“In all the sources examined, Reuterina enjoys a significantly higher percentage of prescriptions
and sales than does Interflora.
If we examine the sales data, IMS give Reuterina a unit share of 30% while the share as given by
Centrix is 30.85%.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
46
Based on prescriptions, Centrix Innovations have Reuterina enjoying a share of 30.38% which is
higher than any competitor.
Impact Rx reports the share for Reuterina to be 32.1% (sales based prescriptions). The data range
for Reuterina is very narrow indicating a high level of consistency.
The range of sales for Interflora is 17% (IMS), 15.65% (Centrix Innovations) and 14.2[%] (Impact
Rx). Centrix Innovations suggest that Interflora have prescribed share of 26.3% which is
significantly lower than Reuterina.
It is my opinion that based on the above information Reuterina clearly is the most prescribed brand
and consequently the most dispensed brand …”
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
Correct Name of the respondent
The complainant lodged a complaint against Thebe (Pty) Ltd, however on response it was clarified that
Thebe is no longer the responsible company for marketing, selling and distribution of the Reuterina range
of probiotics, as Thebe underwent a name change to Akacia Healthcare (Pty) Ltd towards the end of 2010.
The correct name of the respondent therefore is Akacia.
The respondent’s name will be reflected accordingly.
Complaint
In circumstances where a complainant identifies the clauses to be considered, the ASA is bound to
consider those clauses only. In this instance, the complainant identified Clauses 7.1 and 7.2 from Appendix
A.
Clause 7.1 of Appendix A, states “Information, claims and comparisons whether in the advertisements,
promotional items, product detailing and all information relating to health products, whether verbal or in
writing, must be accurate, balanced, fair, objective and unambiguous and must be based on up-to-date
evaluation of evidence and must reflect that evidence clearly. Such information or the manner, in which it is
portrayed, must not mislead either directly or by implication by distortion or undue emphasis. Material must
be sufficiently complete to enable their recipients to form their own opinion of the therapeutic value of a
health product. Any information, claim or comparison must be capable of substantiation. No substantiation
is required for claims in the package insert which has been approved by the medicines regulatory
authority”.
Clause 7.2 of Appendix A, states “Promotional material must encourage the rational use of health product
by presenting it objectively and without exaggerating its properties. Exaggerated or all embracing claims
must not be made and superlatives must not be used except for those limited circumstances where they
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
47
relate to a clear fact about a health product. Claims should not imply that a medicine, active ingredient or
health product has some special merit, quality or property unless this can be substantiated”.
Before considering the merits, it has to be noted that Appendix A consists of four major sections, three of
which contain specific requirements in terms of what is acceptable insofar as advertising and general
marketing is concerned. The three sections can be summarised as follows:
1)
Part A, which deals exclusively with “The marketing and promotion of health products to healthcare
professionals” (refer Clause 2.5.1 of Appendix A), (our own emphasis)
2)
Part B, which deals exclusively with “The marketing and promotion of health products directly to
the consumer” (refer Clause 2.5.2 of Appendix A), and (our own emphasis)
3)
Part C, which deals exclusively with “The marketing and promotion of medical devices” (refer
Clause 2.5.3 of Appendix A).
The clauses identified by the complainant fall within Part A. As such, these clauses would apply exclusively
to instances where marketing or advertising was aimed at healthcare professionals.
The material at issue, however, does not appear to be aimed at healthcare professionals, but rather at the
consumers. The packaging would be seen on shelves, or on the respondent’s website, and would
presumably be aimed at persuading potential customers to purchase this probiotic. The pamphlet asks the
question “Choosing a probiotic?” and then explains to interested customers why the respondent’s product
should be selected. After explaining what probiotics are (something that would presumably not be
necessary for a healthcare professional) and why one should take them (also something that would
presumably not be necessary for a healthcare professional) it lists the benefits and recommended dosages
depending on the symptoms experienced. Ultimately, it concludes by stating “Should symptoms persist or
diarrhoea not improve within 2 days, please consult your healthcare professional”.
Form the above, the Directorate is satisfied that the advertising at issue would fall under the ambit of Part B
of Appendix A.
As such, the complainant has identified clauses that do not apply, and cannot be ruled on at this
time. The Directorate is therefore not able to consider the merits of the matter insofar as the
requirements of Clauses 7.1 and 7.2 of Appendix A apply.
SOLAL TECH OMEGA 3&6 / K CHARELSTON (ASC) / 16711
Ruling of the : ASA Directorate
In the matter between:
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
48
KEVIN CHARLESTON - Complainant(s)/Appellant(s)
SOLAL TECHNOLOGIES (PTY) LTD – First Respondent
BACKGROUND
Mr Charleston lodged a consumer complaint against Solal’s newspaper advertisement that appeared in the
Business Day during October 2010.
The advertisement is headed “Why omegas are so important and how to choose the safest one”. It also
contains, inter alia, the following claims:

“… most people are deficient in omega 3. This common omega 3 deficiency can increase the risk
of heart attacks, strokes, arthritis, diabetes and depression”.

“The information presented above is the informed opinion of SOLAL Technologies after review of
scientific research and medical literature”.

“PRESCRIBED BY DOCTORS – RECOMMENDED BY PHARMACISTS”.
COMPLAINT
The complainant essentially submitted that these claims are in breach of Appendix A of the Code, more
specifically the provisions dealing with the topic of vitamins and minerals, as well as Appendix F of the
Code, due to the fact that it suggests a deficiency in omega 3 increases a risk for diseases listed in this
appendix.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complainant identified the following clauses of the Code as relevant:

Clause 5.1 of Appendix A (Impressions of professional advice or support) – [relates to an earlier
version of the Code, which has since been amended]

Clause 8.21.1 of Appendix A (Unacceptable claims: Particular products, treatments, symptoms
and conditions - Vitamins and minerals)

Appendix F (References to diseases in advertising)
RESPONSE
This Respondent argued that the complaint is “defective and invalid’ because the contact details and
identity or passport number of the complainant were not included in the complaint received. Either the
complainant omitted this information (in contravention of the procedural requirements of the Code), or the
ASA deliberately deleted this information, something that is not provided for in the Code. As such, the ASA
was precluded from investigating this complaint.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
49
It added that the material complained of does not constitute “advertising” as defined in the Code. The
argument appeared to be that the copy of the advertisement attached to the complaint could not be the
one published in the Business Day as alleged.
Based on this, the respondent alleged that the advertisement was more than likely sourced from its
website archives, where old advertisements are kept.
This alone means that the ASA is precluded from investigating these advertisements because they are no
longer current as required by the Code (Refer Clause 3.3 of the Procedural Guide).
In addition to this, the respondent argued that the complainant has “surreptitiously and deceptively”
attempted to disguise a competitor complaint by the Treatment Action Campaign (The TAC) as a consumer
complaint. This argument was based on the fact that the complainant had contributed to, or commented on
a blog run by the TAC on www.quackdown.co.za, who in turn vigorously promotes pharmaceutical products
that compete with the respondent. It alleged that the complainant was attempting to avoid paying the
required fee for competitor complaints.
Finally, in dealing with the merits, it argued that the ASA has no jurisdiction to enforce the requirements of
Appendix A and Appendix F.
ASA DIRECTORATE RULING
At the outset, the Directorate rejected the respondent’s assumption that the advertisement was not, in fact,
sourced from the actual newspaper in which they appeared. It specifically noted that the respondent had
not denied that this exact advertisement appeared in the newspaper.
Even if, for the sake of argument, one were to assume that the advertisement was sourced from the
respondent’s website, the mere presence of a disclaimer as alluded to by the respondent, makes no
material difference to this.
The Directorate also noted that there is currently a notice reading “All the adverts appearing below have
been published and are older than 90 days”.
This appears to be no more than a poor attempt at sidestepping the requirements of the Code (refer Clause
3.3 of the Procedural Guide, which requires all advertising to be current and / or have been placed within
90 days of complaining). Clearly the respondent’s website intends to promote these products for
commercial gain. By keeping these advertisements on its website, it ensures that they remain “current”, as
people are continuously able to access them, consider them, and arguably be influenced by them to buy
the relevant product. This falls squarely within the definition of an “advertisement” contained in the Code,
and clearly also meets the requirement for being “current” as intended in the Code.
In light of the above, the Directorate rejected the respondent’s argument that the advertisement
does not fall within the jurisdiction of the ASA.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
50
Secondly, the respondent’s convoluted argument over the bona fides of the complainant holds no water.
The argument put forward by the respondent was effectively based on its perception that the complainant
was complaining on behalf of the TAC, who in turn have a commercial motive.
Firstly, there was nothing before the Directorate to suggest that the complainant was acting for, or
on behalf of the TAC.
Likewise here, the respondent did not submitted a shred of evidence that showed that the complainant has
any commercial ties with the TAC, was instructed by the TAC, or was attempting to protect any commercial
interest of the TAC. It was also worth noting that the ruling in the matter Solal Technologies Healthy Fast
Foods / M Low / 16575 (15 December 2010) dealt with the very same issue, only in relation to a person
employed by the TAC. Here too, this baseless allegation was rejected.
In subsequent correspondence, the respondent submitted an email detailing discussions between one of its
directors, Mr Brent Murphy, and a TAC representative, Mr Nathan Geffen. The copy submitted contains a
highlighted section reading as follows:
“… Solal has litigation pending against Harris Steinman and Roy Jobson or while a representative
of TAC, Marcus Low, has complaints pending against Solal at the ASA”.
No explanation was given as to how this was relevant or how it applied to the complainant in this matter. As
such, the Directorate attached no weight to this.
Accordingly, the Directorate rejected the respondent’s argument that the complaint was a
disguised competitor complaint.
The next concern related to the omission of the complainant’s ID or passport number and his
contact details. Here too, the Directorate noted, with concern, that the respondent effectively
raised the same issue in Solal Technologies Healthy Fast Foods / M Low / 16575 (15 December
2010).
It is unclear why the non-disclosure of this information is problematic for the respondent. Similarly, it is
unclear why the respondent is again raising a superfluous issue of this nature. The decision to hide
personal contact details from advertisers is of an operational nature, and is justifiable, given the potential
for harassment in any dispute before the ASA. It also deserves mention that the respondent has, in
previous matters (refer Solal Technologies Healthy Fast Foods referred to above for example) indicated
that it does not hesitate to take legal action against complainants. This at least supports the operational
decision to withhold contact information about complainants, because victimisation and intimidation would
likely stifle future complaints.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
51
For the above reasons, the respondent’s objection on this basis was rejected, and the Directorate
was satisfied that the complaint met the relevant criteria set out in the Procedural Guide, and was
therefore a “valid” complaint.
Lastly, the Directorate turned to the merits of the complaint before it.
The only portions of the Code cited as relevant by the complainant, were Appendix A and Appendix F.
In the period between lodging the complaint, and the Directorate actually being able to rule on the merits,
the ASA adopted a new, and completely different Appendix A. Aside from the fact that this appendix
expressly stipulates that it excludes complementary medicines such as the respondent’s, it also no longer
contains the specific provisions highlighted by the complainant (Clauses 5.1 and 8.21.1).
The Directorate therefore can no longer consider the complaint in terms of Appendix A. However, the
provisions of Appendix F are still applicable.
In this regard the respondent again submitted a tortuous argument about the Directorate’s jurisdiction, or
rather lack thereof, in relation to this appendix, with specific reference to specific laws of the country, and
how they may impact on the ASA’s ability to rule on advertising for these products. The essential premise is
that the Code incorrectly identifies the “owner” of Appendix F as the Medicines Control Council of the
Department of Health, and creates an expectation that the ASA was entitled to administer this appendix on
behalf of the Department of Health.
In Christ Embassy Church/ N Geffen / 14821 (28 April 2011), the Final Appeal Committee had to consider
an argument very similar to that of the respondent. It held, inter alia, as follows:
“Clause 4 of the preface to the Code provides that: ‘This Code is supplemented by individual
Codes which are determined by the various member organizations or negotiated with
governmental institutions. These individual Codes are reflected in the appendices to the Code. All
such Codes conform to the general principles laid down by this Code and differ only in detail where
the individual needs are to be met.” The Code further provides that: “The individual Codes
contained in the appendices are administered on behalf of the owner identified at the top of the
first page of each appendix.’
The owner at the top of Appendix F is said to be the Medicines Control Council (MCC).
Ms Jansen argued that the contractual provisions of Appendix F need to be interpreted and
applied in accordance with the provisions of the Medicines and Related Substances Control Act,
101 of 1965. She submitted that a conflicting interpretation would mean that the MCC negotiated
and agreed to provisions in Appendix F, ultra vires its statutory mandate and such agreement
could not contractually impose requirements that legally cannot be met. She further argued that
section 18 C of the Medicines Amendment Act had not been complied with, as there had been no
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
52
regulation relating to the marketing of medicines.
We do not agree with this submission. Assuming for the purposes of this matter that there is no
regulation, and Appendix F is ultra vires, in the context of this matter these two issues are legally
irrelevant. The appendix became a term of the contract between interested parties to the Code
being a supplement to the Code.
That which is contained in Appendix F is therefore part of the Code and there has to be
compliance with these terms by interested parties such as the parties in casu.
.
We have concluded that the Code is clear as supplemented by Appendix F. One may not advertise
a product or offer treatment or advice for heart trouble unless this accords with the full product
registration by the MCC. It was common cause between the parties that this requirement was not
met”.
By this reasoning alone, the respondent’s argument failed, and the Directorate was satisfied that the
provisions of Appendix F were applicable, and could be enforced. The respondent had not made a
compelling argument as to why this ruling by the Final Appeal Committee was not applicable, and the
Directorate was not, at this time, of a mind to differ with this view.
In addition to this, the respondent questioned the ASA’s ability to restrict its constitutional right to free
commercial speech.
The Directorate noted that the ASA Appeal Committee ruled as follows in AIG Life / R Booysen (31 May
2006):
“In terms of Section 36 (1) of the Constitution the right of freedom of expression may be limited to
the extent that it is reasonable and justifiable in an open and democratic society, based on human
dignity, equality and freedom, taking into account all relevant factors, including the nature of the
right, the nature and extent of the limitation, the relation between the limitation and its purpose and
less restrictive means to achieve the purpose.
“The nature and extent of the limitation in casu is an international standard to prevent advertising
that is not ‘legal, decent, honest and truthful’. The ASA Code follows the international standard in
regard to misleading advertising. Vide the International Advertising Code as published by the
International Chamber of Commerce and adopted by the European Advertising Association. The
purpose of the limitation contained in 4.2.1 of the Code is that members of the public (consumers)
should not be misled in regard to any form of advertising. As in other countries, the advertising
industry is self regulated and as such the ASA carries out a public function. The appellant through
its association with the ASA is bound by contract not to breach the Code. There is, in the view of
the committee, no less restrictive means to achieve the public purpose of ensuring that marketers
do not mislead consumers.
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
53
“In order to ensure that the requirements of Section 36 (1) have been fulfilled so as to limit the right
of freedom of expression, the different interests of the parties must be balanced and weighed up.
For the appellant there is the freedom to express its direct marketing campaign while the
consumer requires that advertising should not be such that it is likely to mislead. Public policy is in
line with this requirement. In weighing these two interests up, the right of the appellant to freedom
of expression must give way to its contractual obligation not to advertise in a manner which would
be likely to mislead and the public interest that advertisers should not promote either their products
or competitions in a manner likely to mislead or to abuse a consumer’s credulity.”
The Final Appeal Committee’s reasoning in relation to Clause 4.2.1 of Section II (Misleading claims) is
similarly applicable to Appendix F. In short, the respondent’s right to freedom of expression must give way
to its contractual obligation not to advertise in a manner that contravenes the provisions of the Code, and
the public interest that advertisers should not promote their products by using such claims.
The conditions listed in the respondent’s advertisement are “…heart attacks, strokes, arthritis, diabetes and
depression”. All of these, with the exception of “strokes” and “depression”, are listed in Appendix F.
The advertising claims “… most people are deficient in omega 3. This common omega 3 deficiency can
increase the risk of heart attacks, strokes, arthritis, diabetes and depression”, and then promotes the
respondent’s product, indirectly implying that it contains the essential concentration of omega 3 to avoid
such illnesses, or at best lower one’s predisposition for such illnesses. This is reinforced by the heading
“Why omegas are so important and how to choose the safest one”.
Clearly this amounts to offering products and advice for the conditions such as arthritis, diabetes and heart
attacks (listed as “Heart troubles, cardiac symptoms” in Appendix F).
The respondent had not commented on the merits of the complaint, and moreover had not submitted any
evidence that its products accord with full registration and recommendation by the MCC as is required by
this appendix.
In light of this, the respondent’s advertisement is in contravention of Appendix F.
Given the above the Directorate ruled that:

The advertisement and relevant claims must be withdrawn;

The process to withdraw the advertisement and claims must be actioned with immediate effect on
receipt of this ruling;
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
54

The withdrawal of the advertisement and claims must be completed within the deadlines stipulated
by Clause 15.3 of the Procedural Guide;

The advertisement and relevant claims may not be used again in their current format.
The complaint was partly upheld.
Grounds for Appeal
The Appellant filed it Appeal against the Directorates Ruling on 11 July 2011.The Appellant takes issue
with the Directorate not considering its submissions or dismissing them based only on its reliance on the
ruling of the Final Appeal Committee in the Embassy matter referred to above. The grounds for appeal are
set out clearly in the Appellants Heads of Argument submitted at the Appeal hearing and need not be
repeated here. The Respondent filed its response on 22 July and did not respond to the “legal” issues
raised by the Appellant but reiterated his objections to the advertisement as a contravention of Appendix F
The Appeal hearing
Messrs B Murphy, C Levin and H Snoyman appeared on behalf of the Appellant. . There was no
appearance from the Respondent.
The Appellant’s representations followed the Heads of Argument
Clearly the main aim of the Appeal is to shoot down Appendix F.
The Appellant advances 4 arguments in pursuit of its appeal, which are dealt with below, following the
numbering in the Appellants heads;
2) The ASA has no power to adopt or enforce Appendix F
The argument is directed at the adoption by the Board of Directors of the ASA and /or its members of
Appendix F.
The crisp question for the Committee’s decision on this issue is whether it has the power or authority to
pronounce on the actions of the Board or its members.
The Committee is constituted to consider complaints in terms of the Code of Advertising practice and that is
its raison d’etre. It is therefore entitled to assume that the published code is enforceable until there is a
determination that it is not. It is not for this Committee to make such a determination.
3) The terms of the contract between the ASA, its members and those indirectly bound
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
55
The Appellant sets out what it believes to be the correct contractual relationship.
That relationship has been stated on a number of occasions by the Final Appeal Committee and as the
Embassy Church ruling is relevant to this appeal we quote from that ruling:.
“The Code constitutes a contract between the Appellant and the Respondent. The agreement between
them is that neither would advertise in a manner which breaches the provisions of that agreement, namely
the Code.”
The Appellant seeks to distinguish the present matter from the Embassy Church matter on the basis that
the ASA has no valid mandate to enforce Appendix F. The one basis is the argument set out in 2 above
which has been dealt with. The other is the letter from the Department of Health dated 7 March 2011 which
is an expression of an opinion as to the status of the ASA’s relationship with the MCC as well as Appendix
F and cannot be construed as a revocation of Appendix F, or as evidence as contended for by the
Appellant (parol or otherwise) A similar opinion was given by the same MCC representative in the Embassy
Church matter.
That matter was concluded by the Final Appeal Committee in April2011 and its views on Appendix F being
part of the Code are clearly set out at paragraphs 7 and 8 of the ruling. There is no suggestion that the
MCC has sought to have the Code or Appendix F amended. That would be the correct way for the MCC to
approach the issue if it were so minded. In the absence of any amendment to the Code this Committee is
entitled to assume the validity of Appendix F and consequently apply it as part of the contractual terms
between the parties(.they are not indirectly bound).
4) Appendix F is unconstitutional
The ambit of Appendix F is set out in the first paragraph and this is the contractual term applicable to the
parties. The term of the contract is that a party, in the context of the current complaint, should not offer
advice on illnesses listed in Appendix F unless recommendations accord with full product registration by
the MCC. That is not an unreasonable restriction as to allow unrestricted advice to consumers would not be
justifiable.
The Appellant contends that its right to sell is restricted which is not correct. It is free to sell its products as
it sees fit but it is not free to offer advice in its advertisements that contravene Appendix F. Like the MCC,
as set out above, the Appellant is free to make submissions on amending the Code including Appendix F
through the appropriate channels if it believes the Appendix serves no purpose in a self regulated
environment.
5) A proper interpretation of Appendix F
The Appellant deals with the merits of the disputed advertisement in one page of its 18 page submission
and contends that its advertisement is not advice for the diseases or prevention of the diseases.
In judging an advertisement the purpose and intent of the advertisement must be considered. Clearly the
intent of the advertisement is to persuade consumers to buy Omega 3 products offered by the Appellant.
The question then is why would someone buy Omega 3 and the answer as per the advertisement is that
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
56
increased Omega 3 intake would reduce the risk of heart attacks, strokes, arthritis, diabetes and
depression. Couching the proposition as a deficiency that can increase the risk still delivers the same
message and the purpose of the advertisement is clear, namely to offer advice to the consumer.
ASC Ruling
The committee dismissed the Appeal. The request of a refund of the lodgement fee is refused.
WINDHOEK DRAUGHT / SAB / 18465
Ruling of the : ASA Directorate
In the matter between:
THE SOUTH AFRICAN BREWERIES LIMITED - Complainant(s)/Appellant(s)
NAMIBIAN BREWERIES LIMITED /Respondent
14 October 2011
Adams and Adams attorneys, acting on behalf of SAB, lodged a competitor complaint against a Windhoek
Draught trade presenter and “visibility elements” that are currently being distributed on behalf of Namibian
Breweries.
The complaint is against the following claims that appear on the advertising materials:

“GET MORE OF THE ORIGINAL”;

“THE ORIGINAL RECIPE FOR SUCCESS: MORE 100% PURE BEER AND YOU”;

“CHOOSE ORIGINAL”;

“CHOOSE MORE ORIGINAL”; and

“ORIGINAL AND EASY”

“It is the fastest growing beer brand in South Africa”
The complainant also took issue with the claim “Windhoek Draught is the Original smooth, mellow, well
rounded draught beer” on the basis that it reinforces the other claims.
COMPLAINT
In essence the complainant submitted that the advertisements and claims objected to are misleading,
inaccurate and not capable of objective substantiation. It is internationally recognised in the brewing
industry that pilsner Urquell, which was sold by SAB in South Africa, was the original and first golden and
ASA Rulings Week 40 - 41 (3 October 2011 – 14 October 2011)
57
clear larger beer, created in October and November 1842. The original beers in the Cape, including Castle,
were available in draught form long before Windhoek Draught was conceived.
The respondent has, in its own publicity materials, made it clear that its earliest products were developed in
or after 1904, to suit the local conditions in Namibia, therefore the claims regarding Windhoek Draught’s
status as an “original” product are untrue and misleading.
The complainant concluded as follows:
“Therefore, the claims of Namibia Breweries Limited regarding the product sold as Windhoek
Draught, as presented in the Windhoek Draught advertising regarding its status as an original
product and the growth of the brand, are intentionally misleading. It is clear that, even if Namibian
Breweries Limited is called on to substantiate those claims, it will not be able to do so”.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complainant identified the following clauses as relevant:

Section II, Clause 2 – Honesty

Section II, Clause 4.1 – Substantiation

Section, Clause 4.2.1 – Misleading claims

Section II, Clause 4.2.6 – Headlines
RESPONSE
The respondent in response submitted that the trade presenter that forms the basis of the complaint was
not intended for the end consumer, but was distributed in taverns, therefore the claims that appear on the
trade presenter should be considered in the view-point of the relevant target market (i.e. not an ordinary
consumer).
It also questioned where the complainant was able to obtain the document containing the claim that
Windhoek Draught is “… the fastest growing Beer brand in South Africa”, as this is an internal listing
document, which did not form part of the trade presenter, and is purely used for internal business purposes.
Nonetheless, it submitted AC Nielson data to support this claim.
It also elaborated on the relevant claims, essentially arguing that the references to “ORIGINAL” would,
most likely, be interpreted in one of three manners:
1)
Windhoek Draught 660ml is was the first product of its kind in the South African market;
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2)
Windhoek Draught 660ml is still the same as the previous 440ml;
3)
Windhoek Draught’s flavour could be described as original, as opposed to artificial.
The various nuances in terms of how the claims should be interpreted, depending on the accompanying
advertising, were also discussed. Where relevant, the Directorate will deal with this in the ruling.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
Internal Listing Documents
The respondent submitted that the document (attached as the first page of the annexures attached to the
complaint) did not form part of the Trade Presenter, and was not intended to be distributed to trade, but
was only used for internal NBL business purposes.
The Code provides that the word “advertisement” applies to published advertising wherever it may appear.
The document contains an “In Depot date”; space to fill in information on the “Sales Manager” for
“Gauteng”, “Inland”, “KZN” and “Western Cape”; SKU Numbers; Barcodes; Configuration and Dimensions
of the product as well as list prices. In fact, it has the appearances of an internal control form, collating
various bits of information in a single, comprehensive document. It lacks the element of being distributed
with an intention to promote the product. Finally, it is also noted that the scans attached to the complaint
contain the usual markings and borders of a typical .pdf document (such as coloured squares at the top, a
date stamp and margin indicators, whereas this specific document does not. Therefore, the Directorate is
not convinced that this constitutes an advertisement, and finds the respondent’s explanation more
plausible.
Given this, the concerns raised with this document and the claim that Windhoek Draught is “… the
fastest growing Beer brand in South Africa” will not be investigated.
The “Original claims”
Clause 2 of Section II states that advertising “… should not be so framed as to abuse the trust of the
consumer or exploit his lack of experience or knowledge or his credulity.
Clause 4.2.1 of Section II of the Code states, “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”.
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Clause 4.1 of Section II states, inter alia, that an advertiser must hold documentary evidence to support all
claims that are capable of objective substantiation. Clause 4.1.4 of Section II requires that documentary
evidence other than survey data shall emanate from, or be evaluated by, an independent and
credible expert in the particular field to which the claims relate and be acceptable to the ASA.
Clause 4.2.6 of Section II effectively stipulates that advertisers should not use misleading headlines only to
correct or clarify them in the body copy of the advertisement.
The essential question before the Directorate is whether or not the respondent’s references to “ORIGINAL”
are likely to mislead the recipient of these references or to create unsubstantiated expectations.
1.
“GET MORE OF THE ORIGINAL”“
The respondent explained that the advertisement carrying this claim (the second page attached to the
complaint) is aimed at consumers, and will be used in different media form to promote the new Windhoek
Draught 660ml product. It submitted that the Windhoek Draught was introduced in South Africa in a 440ml
can during 2003, and in a 440ml Windhoek Draught bottle in 2009. In 2011 the bigger 660ml version of the
original Windhoek Draught product was launched, therefore consumers will be getting more of the original
440ml Windhoek Draught product. The reasonable person would not interpret the claim to mean that the
Windhoek Draught product was the first draught beer available in the South Africa.
The advertisement contains a picture of the new 660ml bottle of Windhoek Draught and has the headline
“GET MORE OF THE ORIGINAL”. The body copy reads “It seems South Africans cannot get enough of
Windhoek Draught 440ml – so we decided to give them more. Introducing the Windhoek Draught – now in
a bigger 660ml format. 100% PURE BEER”.
In Tiger Brands Beacon Sweet / W Menne / 10910 (13 May 2008), it was held, inter alia, “The Directorate
acknowledges that it is common practice for the manufacturer of foodstuff and household goods to refer to
the plain, classic or regular variant to the variant that was manufactured as original.” In this instance
although the product under investigation, is not a foodstuff, the principle of the ruling still applies.
The Directorate is satisfied that a reasonable person would likely interpret the reference to “ORIGINAL” in
this context as a reference to the previous size of the Draught bottle / can. The advertisement clearly sets
this context, and explains that the newer bottle will allow customers “MORE OF THE ORIGINAL”, or more
of the same, by virtue of the larger bottles. For the sake of completeness, the Directorate does not believe
there will be a material difference in the likely interpretation of this claim by end customers or trade
customers.
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As such, the requirement for substantiation as requested by the complainant falls away and the Directorate
is satisfied that the advertisement is not likely to mislead or exploit peoples’ credulity. It can therefore also
not be said to be dishonest.
Accordingly, this advertisement is not in contravention of the clauses identified by the
complainant.
This aspect of the complaint is dismissed.
2.
“THE ORIGINAL RECIPE FOR SUCCESS: MORE 100% PURE BEER AND YOU”.
The respondent explained that the advertisement is aimed at tavern owners, tavern managers and tavern
operators. It submitted that the claim is incapable of objective substantiation, as the claim is subjective and
constitute an opinion of the respondent. It further submitted that the reference to “original” in this context
constitutes puffery, as the truth of the statement “the original recipe for success” cannot be proven.
Clause 3.1 of Section I provides that “In assessing an advertisement’s conformity to the terms of this Code,
the primary test applied will be that of the probable impact of the advertisement as a whole upon those who
are likely to see or hear it. Due regard will be paid to each part of the contents, visual and aural and to the
nature of the medium through which it is conveyed.”
Immediately below the headline “THE ORIGINAL RECIPE FOR SUCCESS: MORE 100% PURE BEER
AND YOU”, the print advertisement also contains the claim, inter alia, as follows:
“The sharing pack format in the South African market contributes 77% to the overall beer volume
and is the dominant format in the main market (Nielsen). This gives you and your shopper /
consumer more choice as to how they want to enjoy their Windhoek Draught. Windhoek Draught is
the original smooth, mellow, well rounded draught beer. Crisp and easy to drink. It’s perfect for any
social drinking occasion. We are proud to announce that from 15 August 2011 Windhoek Draught
will be available in a 660ml returnable bottle in a 12 bottle branded box.”
Clause 4.2.2 of Section II states, inter alia, that “value judgments, matters of opinion or subjective
assessments are permissible, provided that it is clear that what is being expressed is an opinion and there
is no likelihood of the opinion (or the way it is expressed) misleading consumers about any aspect of a
product or service which is capable of being objectively assessed in the light of generally accepted
standards. The guiding principle is that puffery is true when an expression of opinion, but false when
viewed as an expression of fact”.
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The same page of the trade presenter contains another claim above the one in question which states “12
RETURNABLE BOTTLES IN A CONVENIENT BOX. IT’S A WIN-WIN SITUATION. It’s the biggest thing to
happen to the Windhoek brand in years. Windhoek Draught is shooting up the ranks of the top 10 selling
premium beers in the country. It is growing in leaps and bounds every year, even more so after the launch
of the 440ml bottle in 2010... “
The hypothetical reasonable person reading the advertisement in question, would understand it to mean
that the original recipe for success for tavern owners is to sell more Windhoek Draught beers as they are
100% pure beer and there is an established trend of growth in sales. This communication constitutes an
opinion of the respondent, and not an objective claim that is capable of objective substantiation.
It is also noted that the claim contains a colon, denoting that an explanation is imminent. As such, the claim
is made “THE ORIGINAL RECIPE FOR SUCCESS”, then the colon, and then the explanation of what the
“original recipe for success” is’ “MORE 100% BEER AND YOU”.
This is clearly not a claim capable of objective substantiation, and would not likely be interpreted in the
manner suggested by the complainant.
Given this, the claim “THE ORIGINAL RECIPE FOR SUCCESS: MORE 100% PURE BEER AND YOU”
is not in breach of any of the clauses identified by the complainant.
This aspect of the complaint is dismissed.
3.
“Windhoek Draught is the Original smooth, mellow, well-rounded draught beer”
This claim appears on the same page as the preceding one.
The Respondent argued that the claim is incapable of substantiation and constitutes puffery. Draught beers
are not officially or objectively classified as “smooth, mellow and well-rounded” and there are no generally
accepted standards in the industry to measure such criteria. Tavern owners would understand this.
The surrounding body copy states:
“The sharing pack format in the South African market contributes 77% to the overall beer volume
and is the dominant format in the main market (Nielsen). This gives you and your shopper /
consumer more choice as to how they want to enjoy their Windhoek Draught. Windhoek Draught is
the original smooth, mellow, well rounded draught beer. Crisp and easy to drink. It’s perfect for any
social drinking occasion. We are proud to announce that from 15 August 2011 Windhoek Draught
will be available in a 660ml returnable bottle in a 12 bottle branded box.”
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All the terms used to describe the Windhoek Draught beer are subjective and clearly communicated as
such. Terms such as smooth, mellow, well rounded draught beer, crisp and easy to drink are not likely to
be interpreted as capable of objective substantiation, and the Directorate is satisfied that any reasonable
tavern owner would see the claim in this context. There is nothing to suggest that the respondent beer is
the first “golden clear lager beer” as suggested by the complainant.
Given this, the claim “Windhoek Draught is the Original smooth, mellow, well rounded draught
beer, crisp and easy to drink” is not in contravention of any of the clauses identified by the
complainant.
This aspect of the complaint is dismissed.
4.
“CHOOSE ORIGINAL”; “CHOOSE MORE ORIGINAL” , and “ORIGINAL & EASY”.
These claims appear on the “visibility elements” which are effectively stand alone banners presumably
intended to be placed in and around outlets.
Considering these claims in the context they are made, and from the viewpoint of a hypothetical reasonable
person (or tavern owner), the Directorate is not convinced that they communicate or imply that Windhoek
was the first beer or draught beer available in South Africa.
Although the advertising attached to the complaint was not particularly clear to the extent that some of the
writing on these visibility elements is illegible, one cannot overlook the fact that many of them also explain
that the respondent’s product is now available in a 660ml bottle. This alone suggests to a reasonable
person that the reference to “ORIGINAL” relates to the previous version, or content. Put simply, the
advertising communicates that the same (original) beer is now contained in a larger bottle.
Even where the claim is made without the reference to the bottle size, there is nothing to suggest that the
reference to “ORIGINAL” relates to a historical availability. If anything, it appears to be mere advertising
speak, or puffery, as the words “choose original” on their own mean virtually nothing.
When one considers that these visibility elements were included in the trade presenter as presented to
tavern owners, coupled with the fact that the other claims appearing in the presenter were held to be
acceptable in this ruling, there is no reason to believe that the interpretation a tavern owner would attach to
these executions would be any different.
Accordingly, this advertisement is not in contravention of the clauses identified by the
complainant.
This aspect of the complaint is dismissed.
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