ADVERTISING STANDARDS BODY
SLAMMED BY HIGH COURT
(Secretary : TNHA)
The private company known as the Advertising Standards Authority of South Africa (ASA) was ordered by the Gauteng High Court on the 5th of May to stop accepting complaints or making rulings on advertisements published by non-members. The interdict effectively prohibits the ASA from banning ads by marketers of natural health products (and any other advertiser in any industry) which do not subscribe to the ASA’s private Advertising Code.
In August last year we broke the story in our newsletter about the difficulties manufacturers and distributors of natural health products were experiencing with the ASA, as well as the unscrupulous manner in which this private company was misrepresenting itself to industry and the public.
THE ASA IS NOT A STATUTORY ADVERTISING REGULATOR
Herbex was not a members of any of the above organizations, and therefore not subject to the ASA or its Advertising Code. In his judgement Judge Du Plessisand granted of the final interdict against the ASA, and made the following order:
- The ASA has no right to pursue or regulate the advertising of non-ASA members.
- The ASA has no right to make ‘superfluous orders’ or ‘rulings’ against non-members of the ASA, including issuing advert alerts to the media to prohibit them from carrying advertising.
- The ASA may not coax unsuspecting non-members to participate in its activities.
- All prior rulings made against Herbex are to be voided.
- The ASA must delete all references to any rulings against Herbex on its website and official publications.
- The ASA must make changes to its letters it sends to companies which it receives complaints about. These letters must indicate that if a company is not an ASA member, they are not bound to participate further and may ignore the correspondence.
- The ASA had no lawful right to unilaterally charge appeal fees to Herbex to defend its advertising and rights when it was not bound to participate in its processes.
- The ASA is to repay the R169 500.00 Herbex has paid for appeals in the past.
- The ASA must pay the legal fees of Herbex in the interdict application, including the costs of two legal counsel.