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* Below are the 20 most recent rulings of the ASA. To find out how to view
all the rulings in the ASA database go to the ad library.
| 1.
Ozmed / K Charleston / 19317
(01 Feb 2012) |
| Mr Charleston lodged a consumer complaint against an Ozmed print advertisement promoting its “Ozone Health Spa”. The advertisement was published in the 10 December 2011 edition of the Cape Argus.
It poses the question “Do You Suffer From?” and lists “Stress”; “Hypertension”; “Diabetes”; “Asthma”; “Arthritis”; “HIV/Aids”; “Low Sex Drive”; “Psoriasis”; Cancer” and “Erectile Dysfunction”.
Below this, the product is shown at a cost of R6500,00 and the advertisement states:
“Ozone improves blood circulation and kills harmful organisms in the body thus combating the above illnesses”.
The complainant submitted, in essence, that the advertisement is in contravention of the clauses as cited below, because the advertiser has no proof of its efficacy claims and because the product makes claims which are only permitted for products registered and approved by the Medicines Control Council (the MCC). |
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| 2.
Wantitall / N Dinur / 18739
(01 Feb 2012) |
| Mrs Dinur lodged a consumer complaint against an advertisement received via email from WantItAll.co.za.
The advertisement is in the form of a coupon or voucher, offering Wantitall members “FREE delivery *this week only”.
Below this, it provides a “Coupon Code” and the copy reads “We have a simple business model: ‘You want it. We got it’ … Unless you’re Mark Zuckerberg, you probably can’t have it all though, so here’s just a little help from us. Use this voucher wisely, young grasshopper”.
At the bottom, it states, inter alia, “*Only one coupon per order”.
In essence, the complainant submitted that the advertisement is misleading. As a result of this voucher, she bought and paid for two baby rattles. However, she was charged a delivery fee of R49 per rattle. When querying this, she was informed that she was charged because she used a discount coupon to purchase the rattles, and could not use this “FREE delivery” coupon in conjunction with the discount coupon. |
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| 3.
Woolworths / Frankies / 19254
(01 Feb 2012) |
| Zeiler Jankey attorneys lodged a competitor complaint on behalf of Frankie’s Olde Soft Drinks against the packaging of Woolworths’ “Good Old Fashioned” soft drinks range.
The packaging contains, inter alia, the words “GOOD OLD FASHIONED”.
The complainant submitted, inter alia, that it commenced using the phrase “Good Old Fashioned Soft Drinks” in 2006, and that it appeared on all its point of sale and advertising material such as posters, table talkers and fridge wobblers. At the time no soft drink company in South Africa used the advertising concept “Good Old Fashioned Soft Drinks”. By 2008, the complainant’s products had extended from KwaZulu-Natal to retail outlets in Johannesburg and the Western Cape. All the time, the concept of “Good Old Fashioned Soft Drinks” continued to be emphasised on point of sale material. The distribution of point of sale material (posters and table talkers) increased dramatically in 2009, and was kept consistent during the following years.
The respondent causes manufacturers of branded products to also produce these products for sale under the Woolworths brand, and manufacturers of branded products package products for and on behalf of Woolworths. Having regard to the advertising goodwill attaching to “Good Old Fashioned Soft Drinks”, it is likely that a customer who sees the same soft drink in Woolworths bearing “Good Old Fashioned” will be confused into believing that the Woolworths product has been bottled by the complainant for Woolworths. |
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| 4.
Flight Centre / M Le Roux / 15391
(27 Jan 2012) |
| In Flight Centre / M Le Roux / 15391 (1 June 2010) the Directorate ruled that the claim “We will beat any airline or web airfare quote or you fly for free!” was communicated in a misleading manner in contravention of Clause 4.2.1 of Section II of the Code.
The advertising objected to at that time stated, inter alia, the following:
• “If you happened to find a cheaper available price, WE WILL BEAT IT!!”
• “LOW PRICE PROMISE We will beat your quote or your booking is free*”
• “We are so confident that we have the best airfare prices in South Africa that if you find a lower airfare elsewhere and cannot beat it, you will FLY FOR FREE^”
• Fly for Free We will beat any airline or web airfare quote or you fly for free!”
• “Our Fly for Free Promise is more than a marketing promise; its our promise to you our valued customer. As part of this fly for free campaign, Flight Centre guarantees to beat any genuine airfare, or web airfare quote subject to availability and based on South African registered businesses and website”.
The ruling noted the following:
“It is trite that advertisers cannot rely on disclaimers to correct misleading information conveyed in advertising. The Directorate has often held that phrases such as ‘Terms and Conditions Apply’ serve little purpose unless it is a term or a condition that any hypothetical reasonable person would likely expect to apply.
The claim ‘We will beat any airline or web airfare quote or you fly for free!’ appears all over the respondent’s website. As such, the overwhelming initial impression created is that the respondent will beat any airline or web airfare quote, but if it cannot, the customer will fly for free. In fact, even on the page displaying the applicable terms and conditions, this very message appears five times before any mention is made that it only applies to South African registered businesses and websites.
It is worth noting that in recent years, air travel has become increasingly user friendly and accessible. Many airlines operate nearly exclusively on the premise of being a “low cost” alternative and customers are able to purchase tickets and compare ticket prices directly, online and for nearly any travel operator, irrespective of whether such operators are based locally or abroad.
The claim ‘We will beat any airline or web airfare quote or you fly for free!’ … is effectively an open invitation to all interested customers to ‘put the respondent to the test’. More importantly, it infers no limitation, which, given that the respondent operates internationally, is likely to be interpreted by a hypothetical reasonable person to mean that ‘any’ competing airfare would be beaten, even those for non-South African operators.
Only once the terms and conditions are scrutinised, will an interested customer learn that this promise only applies to South African registered businesses and websites. As such, the reality of the respondent’s offer is much more limited and at odds with the initial impression created.
It appears that the respondent’s intended communication is that it will beat any South African airline or web airfare quote. Its actual communication does not, however, make such a specific claim.
While the Directorate accepts that the respondent may have valid reasons for only being able to attempt to beat quotes from South African registered companies (see Flight Centre / Mr P Bond / 1484 (30 August 2004) for additional context), the fact remains that it has an onus to clearly and unambiguously communicate this to the consumer. As matters currently stand, the respondent’s terms and conditions contradict the initial impression created”.
The respondent was instructed to withdraw the “We will beat any airline or web airfare or you fly for free” claim within the deadlines stipulated in Clause 15.3 of the Procedural Guide and not use the claims again in its current format in future.
In a complaint submitted to the ASA during October 2011, Mr T Jacobs lodged a complaint against the respondent’s online advertising which contained its “LOWEST AIRFARE GUARANTEE”. In essence, the complainant submitted that the respondent could not beat quotation he submitted, yet did not honour the guarantee. He added that the ASA should enforce the previous ruling.
At that time, the respondent’s website had a tag at the bottom which read “LOWEST AIRFARE GUARANTEE We will beat airfare quotes for available flights departing from South Africa or you fly free*”. |
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| 5.
Simba Puffs / A Ramjee / 18403
(27 Jan 2012) |
| Dr Anil Ramjee lodged a consumer complaint against Simba puffs packaging.
The packaging features images of the puffs as well as an image of Simba the lion on a parachute made of the puffs. It states, inter alia, “No added MGS”, “Free from Tartrazine” and “Free from Tran Fats”.
At the back of the pack, the nutritional information table lists, inter alia, “Total Fat”, and stipulates that “trans fatty acids” are contained in ratios of “<0.01 g” per 100g and “<0.01 g” per 16g serving.
In essence the complainant submitted that the advertising is misleading in that the front of the packet claims “No trans fats” while the back of the pack indicates a presence of trans fats. |
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