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Home Rulings CHECKERS / DAIRY MAID COUNTRY FRESH ICE CREAM / DAVID HUNTER / 2018-7188F

CHECKERS / DAIRY MAID COUNTRY FRESH ICE CREAM / DAVID HUNTER / 2018-7188F

Mr Hunter lodged a consumer complaint against a Checkers’ shelf price ticket and a pamphlet published in the Fourways Review.

The shelf price ticket states the following: 

 "SPAAR selfs MEER

DAIRYMAID COUNTRY FRESH

39.99

2L

COMPLAINT

The Complainant argued the advertising price is misleading, as Checkers does not sell the 2 litre Dairymaid Country Fresh ice cream at R39.99; but only the 1, 8 litre tub.

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 that is not a member of the ASA and is not bound by its rulings. However, it acknowledged that the shelf price ticket incorrectly indicates the volume of the ice cream tubs as 2L and the shelf price ticket was incorrectly worded due to human error. The Respondent indicated, inter alia, that the complaint has been brought to the attention of all its stores and the shelf price ticket in question has been removed and will not be repeated. 

ASA DIRECTORATE RULING

The ASA Directorate has considered all the relevant documentation submitted by the parties. 

Jurisdiction 

The Respondent has raised that it is not a member of the ASA, nor does it agree to submit to the jurisdiction of the ASA.

In The Advertising Standards Authority v Herbex (Pty) Ltd (902/16) [2017] ZASCA 132 the Supreme Court of Appeal found, inter alia, that:

1.1 the Advertising Standards Authority of South Africa (the ASA) has no jurisdiction over any person or entity who is not a member of the ASA and that the ASA may not, in the absence of a submission to its jurisdiction, require non-members to participate in its processes, issue any instruction, order or ruling against the non-member or sanction it;
1.2 the ASA may consider and issue a ruling to its members (which is not binding on non-members) on any advertisement regardless of by whom it is published to determine, on behalf of its members, whether its members should accept any advertisement before it is published or should withdraw any advertisement if it has been published.

The ASA will therefore proceed to consider this matter for the guidance of its members.

Merits

Clause 4.2.1 of Section II stipulates that "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 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 undertaking may, at the discretion of the ASA, be accepted without considering the merits of the matter.

The Respondent apologised to the Complainant for any confusion caused, and explained that the incorrect price was due to human error. The Respondent has removed the advertising in question. 

This undertaking appears to address the concerns raised by the Complainant, and it is therefore accepted on condition that the advertisement is not used again in the current format in future.

The Respondent’s attention is also drawn to the provisions of Clause 15.5 of the Procedural Guide, which effectively requires it to withdraw the advertisement in question from any and all media in which it may appear.


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