Labelling is the transmission of information via letters, figures and artistic characters. Advertising goes a step further as it engages in visual and/or oral creations to endorse or to promote the sale of goods or services through various mediums.
Why is this definitional component of marketing and consumer / business outreach important?
Our laws, in an attempt to protect us against unfair labelling and advertising, require factual and honest labelling and advertising. This principle, which requires honesty in advertising, calls for factual claims and disallows misleading claims, is encoded in the Advertising Standards Authority (ASA) Code of Conduct. The Consumer Protection Act 68 of 2008 (CPA) reinforces this requirement of disclosure of all relevant information and further requires that such disclosure must be in plain language.
Preventing or minimising exposure to legal claims for unfair labelling and advertising
- Have a proper internal advertising standards protocol. This protocol should set out the legal guidelines for all advertisements in whatever format or media, whether they are above the line or below the line, or for public relations releases;
- Ensure that marketing panels and public relations teams are correctly trained on this protocol. Once trained, continue to ensure compliance as they are generally the teams that are involved in the crafting or supporting of advertisements or releases. At the same time make sure your external advertising and public relations agency is fully compliant and conscious of the laws relating to your specific market;
- Take care to ensure that all advertisements, public relations releases and labels are reviewed by internal counsel and by external counsel before release or publication.
Adherence to the above guidelines will:
- ensure factual and legal review and minimise potential CPA claims, as well as minimise ASA review and potential penalties;
- counter trademark infringement and identify any unauthorised use;
- prevent false marking if an advert or product affixes the word “patent” to an unpatentable item;
- prevent both unfair comparative labelling and advertising that promotes your product as superior to your competitors’ without a factual and objective basis.
We recommend that an advertising register be maintained. The register will ensure that a sense of control and accountability is reached, as all releases are documented in the register. By including a provision that all material be sent for legal review to confirm whether they have been reviewed or not, no unacceptable items will slip through.
Knowing the law relating to labelling and advertising in your field could save you endless headaches, unnecessary litigation, and money.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.