How to stop false advertising
A quick guide to lodging complaints with ASASA
Published: March 8, 2011, 5:48 p.m., Last updated: March 14, 2011, 10:40 p.m.
Many advertisements, especially for health products, make claims that are implausible or plain false. Catherine Tomlinson's article on Quackdown, Spotting fake cures for HIV, gave some examples of these. Some of these ads can be stopped, but only by vigilant people who are prepared to take the time to lodge complaints with the Advertising Standards Authority of South Africa (ASASA).
The process to lodge a consumer complaint to ASASA is quick, easy and free.
The TAC has found ASASA to be a very effective way of stopping false medicine sellers from placing their ads in the media. We have lodged many complaints with ASASA and ultimately won most, possibly all, of them. But you do not need to be an NGO like TAC to lodge successful complaints with ASASA. The process for individual consumers to lodge a complaint is quick, easy and free. (Complaints by competitors are not free.) Here are a few tips on how and when to do it.
When to complain to ASASA
ASASA is a self-regulating authority. The advertising companies, various industries and media outlets have voluntarily agreed to abide by its code. Electronic media are obliged by the Electronic Communications Act to adhere to the ASASA code.
Because ASASA is self-regulating, its rulings are only enforceable against its members, who usually adhere to ASASA's orders. So if you see an advert that makes dubious claims in a commercial newspaper or on television, a successful complaint to ASASA will probably result in the advert being withdrawn or modified to remove the false claim.
However, there is not much point in complaining about a small business that distributes pamphlets making outrageous claims. ASASA might very well rule in your favour, but you might find the ruling has no teeth, that it is simply ignored. Other than pursuing expensive litigation, there's very little you can do about such charlatans.
It is also important to realise that ASASA has limited resources. Please do not send ASASA frivolous or petty complaints. I encourage you to complain, but do so about stuff that matters. The ASASA website has many rulings dismissing silly complaints.
How to complain
For false claims about medicines, there are usually two grounds for a complaint: Substantiation and Appendix F. I will explain these in a moment. My complaints to ASASA are as typically as simple as this fictitious one slightly adapted from several real ones:
This is a complaint against Ganaf & Huckster. They placed an advert on page 9 in the Daily Bugle on 29 February. For your convenience, I have attached a scan of the offending advert. They claimed their product treats AIDS. This claim is unsubstantiated and in breach of appendix F.
Your ID or passport Number
Your Telephone Number
Your email address
You do not have to include a copy of the advert, but where possible I try to do so as a courtesy. Of course, for television or radio, a copy of the ad is impossible to enclose.
Let's turn to the two grounds for an effective complaint.
The advertising code requires adverts to be truthful. This is explained in great detail in Section II, clause 4 of the code. The burden of proof falls entirely on the advertiser. The code says:
Before advertising is published, advertisers shall hold in their possession documentary evidence ... to support all claims, whether direct or implied, that are capable of objective substantiation.
In a nutshell, advertising claims must be substantiated.
Appendix F is not as mysterious or technical as it sounds. It is simply an appendix to the code, which states:
Advertisements should not make or offer products, treatments or advice for any of the following illnesses or conditions unless recommendations accord with a full product registration by the Medicines Control Council.
It then lists dozens of diseases. In short unless your product is registered for the treatment of a specific disease with the Medicines Control Council, you may not advertise it as a treatment for that disease. The list includes cancer, heart troubles, diabetes, asthma, AIDS and many more.
It is important that your complaint mentions both substantiation and appendix F. The reason for this is that the burden for substantiation is not as high as it needs to be. ASASA requires only that the company provide testimony from an independent expert witness that the claim is true. It is not hard for companies to find so-called experts who will say anything. Usually these experts are anything but independent, but proving that can be very difficult. Nevertheless, a recent ASASA ruling indicates that they will sometimes challenge experts who talk nonsense. But if your complaint does not succeed on substantiation, it still has a good chance of succeeding under Appendix F.
Lodging complaints against false advertising is an important public service. I hope I have shown that it is relatively easy for a member of the public to take useful action against nonsensical claims.