Login Or Subscribe?
Home Rulings MOCHACHOS / CHICKEN BURRITO / JAMES LEA / 2017-7056F

MOCHACHOS / CHICKEN BURRITO / JAMES LEA / 2017-7056F

Mr Lea lodged a consumer complaint against a Mochachos pamphlet promoting the Chicken Burrito Combo meal. 

The Combo consists of fried potato chips ("Beeg chips”), a can of coke (330 ml) and a chicken Burrito. The Burrito is pictured showing a tortilla filled with grated cheese, chicken strips, green peppers, onion, and avocado (or guacamole).

COMPLAINT

The Complainant submitted that he ordered a chicken combo meal at Mochachos Overport in Durban. Upon receiving his order, he realised that there was no avocado in the Burrito. He enquired about lack of the avocado in the Burrito and he was informed that the avocado was sold separately as an extra. Upon leaving the store, he received a call from the store manager who apologise for the misunderstanding. 

The Complainant contention is that the menu or promotion does not indicate that the avocado is sold separately or that there is a condition to the advertised special. 

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

At the outset, the Respondent pointed out that it is not a member of the ASA and that the ASA does not have jurisdiction. 

The Respondent submitted that it conducts a franchising operation under the name and style of "Mochachos Chicken Villages”; and each outlet is a totally separate and independent business which is owned and conducted by each Franchisee.  It therefore argued that as Franchisor, it cannot be held liable for any acts and/or omissions on the part of any of its Franchisees. 

The Respondent indicated that this complaint has been referred to the Franchisee concerned and according to the Franchisee, the issue raised by the customer was duly dealt with and that the customer left the store fully satisfied.  



ASA DIRECTORATE RULING

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

Jurisdiction

The Respondent argued that it is not a member of the ASA and will not respond to merits herein.

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 of the Code states, "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 Complainant submitted that he commends the store for dealing with his complaint and the apology he received for not being asked if he wanted an avocado with his burrito. However, the main concern of the Complainant is that the pamphlet is misleading as the offer does not have all the advertised ingredients in the meal. 

The Respondent submitted that it was informed by the Franchisee in question that the issue raised by the Complainant was addressed and that the customer left the store fully satisfied. Therefore it does not understand why the complainant lodged a complaint with the ASA.

The Directorate sought further clarification on the advertising issue, whether or not the meal in question comes standard with guacamole or not? In response, the Respondent stated that it has nothing more to say other than what it has already submitted.

The key question before the Directorate therefore, is whether or not the advertisement in question is likely to mislead consumers as to the ingredients of the product at the advertised price. In determining this, the Directorate has to be mindful of the likely takeout that a hypothetical reasonable person would have when viewing the pamphlet as a whole. 

The Directorate compared the actual image of the chicken burrito as depicted on the pamphlet and the image that the complainant submitted of the chicken burrito he received at the franchise. The Directorate noted that the Complainant’s burrito does not have the guacamole whereas the pamphlet clearly shows the guacamole as an ingredient. The Directorate must also accept the Complainant’s version of what occurred as the Respondent has not placed any contradictory evidence or version before it.

In the matter of Fontana Roastery / G L Jackson / 8283 (23 January 2007), the Complainant lodged a complaint against a menu, arguing that it was misleading as it featured images of a Coca Cola, plate of chips and a schwarma. The following prices were indicated at the bottom of the panel "REGULAR SCHWEET R18” and "SCHWEET COMBO R31”. The Directorate held, "There is nothing that clearly tells the consumer that the ‘REGULAR’ option would exclude the chips and drink depicted, and it is conceivable that clients may reach the incorrect conclusion and expect to receive all the depicted items when ordering from this menu. While the presence of two different prices, and the word ‘combo’, may prompt consumers to enquire into the difference, this at best serves to correct the impression created when looking at the image.” 

Similarly in this case, there is nothing in the advertisement that informs customers that the avocado comes as an extra on the advertised price.  Consumers would be misled into believing that they will get what is depicted in the advertisement. The hypothetical reasonable person viewing the pamphlet would expect to get the guacamole as presented in the advertisement.

Accordingly, the Directorate finds that the advertising is likely to mislead consumers in a manner that contravenes the provisions of Clause 4.2.1 of Section II of the Code.

In light of the adverse ruling made above, the Respondent is requested to:

  • Withdraw the disputed advertising advertisement; 
  • Ensure that the process of withdrawing the advertising is actioned with immediate effect on receipt of this ruling; 
  • Ensure that the process of withdrawing the advertising is completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and
  • Refrain from using the disputed advertising again in its current format.

The members of the ASA are advised not to accept the advertising complained of for publication.

The complaint is upheld.




Previous Ruling Next Ruling

© 2018 ASA. All rights reservedDeveloped and Maintained by JHNet Web Development