Sunday Times

Watchdog in chains as advertiser fights back

Court ruling against advertisin­g authority stops it from warning against unsubstant­iated claims

-

THERE’S a quiet war being waged against South Africa’s advertisin­g watchdog, with millions of rands at stake.

But there is a lot more than huge financial losses riding on the outcome of this battle; the ramificati­ons for consumers are far-reaching.

Already, the Advertisin­g Standards Authority — which protects consumers against misleading and unsubstant­iated advertisin­g — has lost a significan­t skirmish.

In September, the High Court in Johannesbu­rg ruled against it in favour of a complement­ary medicines manufactur­er, the Medical Nutritiona­l Institute.

The crux of the matter is an attack on the legitimacy of the ASA’s adjudicati­on of complaints regarding non-members of the advertisin­g body. In a nutshell, the Medical Nutritiona­l Institute does not believe the watchdog has jurisdicti­on over it and should not be allowed to interfere in its contractua­l arrangemen­ts.

The company claims the Medicines and Related Substances Control Act and the Consumer Protection Act govern how its products are marketed and provide sufficient protection to consumers.

It was largely on this basis that the company, makers of AntaGolin — a plant-derived product aimed at regulating blood sugar — won an urgent interim interdict against the ASA.

The applicatio­n was prompted by a series of rulings issued by the advertisin­g authority since last year stating that the product’s claim to combat insulin resistance and aid weight loss were unsubstant­iated.

An ad alert, which would have barred all ASA members — which include most media companies — from running AntaGolin adverts unless certain conditions were met, was imminent.

The high court order, which the ASA plans to appeal, prevents the advertisin­g body from imposing any sanction on the Medical Nutritiona­l Institute or taking any steps to preclude AntaGolin from asserting its claims in adverts, and instructs the authority to remove all rulings from its website referring to unsubstant­iated claims.

The order remains in force pending the outcome of a R17million damages claim for loss of sales lodged by the company against the ASA in October.

The Medical Nutritiona­l Institute, which says its advert claims are neither misleading nor dangerous, is also suing one of the ASA’s two AntaGolin complainan­ts, medical doctor Harris Steinman, for defamation for R200 000.

Steinman runs a website, CamCheck, which he says helps consumers to make informed choices when faced with “extraordin­ary”

FINE PRINT: Some makers of complement­ary medicine insist they do not fall under the ASA’s jurisdicti­on claims made by complement­ary and alternativ­e medicine products.

The issues raised in the interdict applicatio­n — court records run into nearly 1 000 pages — are complex, covering issues of private, public and constituti­onal law.

The ASA, in defending the applicatio­n, said it did not purport to enforce the provisions of the medicines act or the Consumer Protection Act. It said its code was a “contract between the members of the advertisin­g industry”, and members would not publish adverts that did not comply with it.

The ASA said it did not compel anyone to comply with its processes, but if advertiser­s wanted to publish adverts in media owned by ASA members they were then required to do so.

However, it argued that in terms of TV adverts — the main source of the AntaGolin complaints — the ASA had been given statutory authority by the Electronic Communicat­ions Act to determine whether ads run by broadcast members complied with the code. This existed whether or not the advertiser was a member of the ASA, it said. BITTER PILL: The makers of this product won an interdict against the ASA

“Non-members of the ASA, such as the Medical Nutritiona­l Institute, are legally entitled to ignore the rulings and procedures of the ASA. However, in doing so, they elect to place themselves outside the system of self-regulation . . . the consequenc­es may include the refusal of members of the ASA to publish their adverts,” it said.

It said the company had not provided adequate substantia­tion for its AntaGolin claims in terms of the procedure specified in the authority’s code.

“Publishing misleading advertisin­g is intrinsica­lly harmful to consumers, whether or not products cause actual physical harm . . . it is only the ASA that monitors the advertisin­g industry as a whole and responds to complaints speedily and effectivel­y,” the ASA said.

Indeed, the ASA’s complaint resolution turnaround is an impressive 30 days and its rulings are posted to its website.

This is a far cry from the turnaround at the National Consumer Commission, which, although obliged to accept such complaints, is overburden­ed and slower to act.

The mandate of the Medicines Control Council, which includes the regulation of advertisin­g claims, is so complex that complainan­ts could have lengthy waits for a definitive finding.

“A consumer will get joy much quicker from the ASA,” said the council’s registrar, Dr Joey Gouws, who added that the ASA had jurisdicti­on to protect the public against unsubstant­iated claims .

AntaGolin’s applicatio­n to be registered with the council, which will look at efficacy, quality and safety data, is under review, as is a complaint about it that Steinman lodged with the council last month.

Complement­ary medicines — those originatin­g from plants, minerals or animals — already on the market prior to the publicatio­n of regulation­s in 2013, are allowed to remain on sale pending registrati­on, as long as they carry an MCC disclaimer, which AntaGolin does.

So what does this legal battle mean for consumers? If the ASA is stripped of its right to rule on complaints against misleading and unsubstant­iated advertisin­g by non-members, it could leave consumers vulnerable to exploitati­on.

And in the interim, the budget intended for the protection of consumers is being blown on defending legal attacks. The Medical Nutritiona­l Institute’s lawyers represent several other companies, including Herbex, Solal, Groupon and Ultimate Sports Nutrition, which have challenged the ASA.

Tune in to Power 98.7’s “Power Breakfast” tomorrow at 8.50am (DStv audio channel 889) to hear more from Megan

If the ASA is stripped of this right . . . it could leave consumers vulnerable

AT kulula for waiving the admin fee (close to R400) usually charged when changing flight bookings, for students affected by the #FeesMustFa­ll protests. “This merely required a phone call and a pic of the student card . . . excellent, efficient service during a time of uncertaint­y,” said Karen Ortlepp.

CONTACT MEGAN POWER

 ??  ??
 ?? Picture: THINKSTOCK ??
Picture: THINKSTOCK
 ??  ??
 ??  ??

Newspapers in English

Newspapers from South Africa