19 March 2025

The Advertising Regulatory Board

South Africa’s Advertising Regulatory Board (ARB) is a self-regulating industry body set up by the Marketing Association of South Africa (MASA), the Association for Communication and Advertising (ACA) and the Internet Advertising Bureau (IAB) in order to protect consumers by ensuring that products are marketed and advertised in terms of the South African Code of Advertising Practice (the Code), itself based on the International Code of Advertising Practice.

The ARB allows consumers and business competitors to lodge complaints where an advertisement contravenes the standards of the Code. These complaints are considered by the ARB who rules on the acceptability of the advertisement. In cases where an advertisement contravenes the Code, an order is made that it is amended, withdrawn and/or retracted.

The Code intersects with Intellectual Property laws as it has specific provisions on the exploitation of advertising goodwill (section 8) and imitation (section 9). Interestingly, the Code applies to product packaging, which means that the ARB is a forum for instituting proceedings akin to passing off.

The Nutriwomen (Pty) Ltd Ruling

In the 16 May 2024 ruling lodged by L’Orèal South Africa (“the Complainant”) against Nutriwomen (Pty) Ltd (“the Advertiser”), the Complainant successfully argued that the packaging of the Advertiser’s DERMACARE range contravened Sections 8 and 9 of the Code. The Advertiser sold products with packaging confusingly similar to that of the Complainant’s CeraVe skincare range. The Advertiser used a similar colour scheme and colour coding across a product range with similar descriptors on highly similar product bottles, containers and tubes. It was ruled that there were too many similarities between the two ranges to be co-incidental and that it amounted to an exploitation of the Complainant’s advertising goodwill. It was also found that the product packaging constituted an imitation of the Complainant’s product packaging.

Though the Advertiser was not a member of the ARB (and therefore not bound by its decision), the ARB ruled that members of the ARB were not allowed to accept advertising or stock bearing the DERMACARE packaging from 16 August 2024 onwards.

Approaching the ARB can be a very appealing alternative to traditional passing off claims, especially as the business competitor’s fee to lodge a complaint is partially refundable where the complaint is upheld.

The Tiger Brands Ruling

The pro-consumer nature of the ARB can pose a challenge to Advertisers. This was highlighted by the 25 September 2024 ruling on a consumer complaint against Tiger Brands Limited (“the Advertiser”) based on the packaging of a “Melk Tert” flavoured Beacon chocolate bar.

The Complainant (left unnamed in the ruling) lodged a complaint stating that: “Packaging claims to be a certain flavour but isn’t. I am a professional confectioner with a trained palate and this slab in NO WAY, resembles the flavour it claims to be… Beacon Treats / Tiger Brands have an ethical obligation to be accurate and honest with packaging and promises of quality. The product INSIDE must match what it says on the label. Failure to do so, is simply unethical because it is misleading and dishonest.”

This may seem like a run-of-the-mill consumer complaint, but disproving the complaint was a complicated affair. For context, “Melk Tert” is Afrikaans for milk tart, which is a tart with a set filling of milk, flour, sugar and eggs with cinnamon sprinkled over its surface. The taste is very subtle, making any flavour claim difficult to prove (even if the subjectiveness of taste is disregarded).

The ARB frequently deals with complainants without legal representation, so it often has to constructively interpret vague complaints. Advertisers therefore cannot defend against complaints merely by arguing its vagueness. Although this was averred, the Advertiser also responded by referencing a confidential general product information sheet that listed the added flavourants of the slab. This revealed that the product contained milk tart flavouring supplied by a reputable flavour house. The identity of the flavour house was not publicly disclosed, on the Advertiser’s request.

The Advertiser’s disclosure of confidential information to the ARB seems surprising at first, but it makes sense why they would do so in confidence considering that not doing so can result in a ruling advising retailers (that are ARB members not to accept advertising or stock bearing the particular packaging from three months after the ruling or a date as determined by the ARB). It is however noteworthy that the Advertiser was compelled to do so based on a consumer complaint and should serve as a cautionary tale for lawyers advising clients on trade secrets, especially when one considers that consumers can lodge these complaints free of charge.

Concluding Thoughts

The existence of the ARB is a boon to consumers, but it often poses challenges to advertisers. Though these rulings did not create or recontextualise the consumer laws in South Africa, they serve as reminder that:

• The intersection between advertising codes and intellectual property should not be disregarded when developing product packaging and advertising; and
• Courts are not the only forums in South Africa for instituting passing off claims; and
• Trade secrets and/or confidential information are very volatile and fragile.

This article first appeared in WTR Daily, part of World Trademark Review, in October 2024