It comes as no surprise that the embattled Advertising Standards Authority management and board have gone to ground and are steadfastly refusing to answer some pretty searching questions. Either they are in state of denial or the answers are just far too embarrassing.
Major funders of the ASA are in revolt with the most vociferous coming from the print media industry.
The acting CEO of Avusa and prominent member of the Print Media SA Board, Mike Robertson, pulls no punches: "I believe the ASA has lost the plot. The budgets it has submitted to the PMSA in the past couple of years have asked for increases that are way in excess of inflation and are simply unsustainable. It has also not adapted to the consumer protection laws. What the industry needs is a body that can resolve disputes fairly, speedily and cheaply. The ASA is not that body."
The industry task team that is developing funding models for both the ASA and the SA Advertising Research Foundation is believed to be close to a solution for SAARF but I have been told that it is not even past first base on trying to solve the ASA funding issue.
But, funding is not the only problem the ASA faces.
It is rumoured that its president, Judge Mervyn King has resigned but no announcement has been forthcoming. If indeed he has resigned it would be a damning indictment on the ASA in spite of what the inevitable PR spin might suggest.
King has been very much a figurehead and has never really been involved in the operations of the ASA. If he has resigned it would not come as a surprise given that the ASA has been accused by some stakeholders of flouting King 3 corporate governance guidelines.
Legal problems
Just to add to the ASA's woes, a large pharmaceutical company has sued it with litigation documentation running into a couple of thousand pages.
As an indication of the desperation that reigns within the ASA today, when it was served with these papers, the ASA wrote to all of its members claiming that it was being sued by a company that had a history of "numerous consumer complaints."
However, the ASA's own records show that in fact there has been only one complaint in the past 15 years from an actual consumer, with all of the rest coming a small group of four health industry activists who by their own admission have never bought or used any of the company's products.
Very similar to the situation that occurred a few years ago when 75% of all the complaints to the ASA regarding the cellular telephone industry came from one individual.
A litany of accusations and charges
It is believed that the ASA is no longer the advertising industry's own self-regulatory body simply from the point of view that only a handful of advertising practitioners remain involved in what appears to be a non-executive capacity.
It would be safe to say that the ASA has to all intents and purposes, been hijacked.
The litany of accusations and charges against the ASA goes on.
For many years, for example, the ASA claimed that appendices to its Code were drafted by and administered on behalf of credible industry regulatory bodies such as the Medicines Control Council ("MCC").
As early as 2008, the ASA was informed by an industry expert that the MCC could not possibly have delegated authority to the ASA to administer a code on its behalf with regard to the regulation of advertising of medicines and products used to treat certain conditions.
In spite of this, the ASA was found to have continued to administer the appendices to their Code "on behalf of the MCC"
In early 2011, the industry sought clarity directly from the MCC in reference to their relationship with the ASA, and their supposed delegation of authority.
The MCC responded in a letter signed by the Registrar of Medicines, stating in no uncertain terms that it had no relationship with the ASA whatsoever and had delegated no functions to it in any shape or form.
Validity
The big question that still remains concerns the validity of all relevant ASA rulings during the period it claimed to be acting with the blessing of the MCC. The irony is that any company wishing now to contest these rulings will, according to ASA rules, have to pay roughly R70 000 upfront.
Right now there is growing sentiment within the ASA funding community that the organisation needs a radical overhaul, in terms of control at board level, professional skills for adjudication and most importantly the ASA's code needs urgent reassessment to not only bring it in line with the Consumer Protection Act, King 3 and the constitution of the country. In addition, it needs to put a stop to what seem to be bizarre interpretations of regulations. These interpretations are costing companies millions of rands in lost opportunities and legal fees, which inevitably end up being paid for by the very consumer the ASA is supposed to be protecting.
Dysfunctional
The ASA, in my opinion, has become dysfunctional and with growing pressure from its stakeholders and disenchantment from companies that feel they are being victimised by lobbyists brazenly manipulating the ASA, it is time for a complete re-think of just who should be doing the self-regulating of the advertising industry.
Of course the ASA will trot out its usual warning that if it is not allowed to be seen to be carrying on business as usual "government will take over. "
Which is an extremely fatuous argument because government did in fact take over as far back as 1949 with provisions in the Trade Practices Act that allowed for action to be taken on advertising matters.
However, the current government rescinded that legislation years ago, which is pretty much proof that the last thing that government wants to get involved in is judging advertising.
Apart from being a corporate marketing analyst, advisor and media commentator, Chris Moerdyk is a former chairman of Bizcommunity. He was head of strategic planning and public affairs for BMW South Africa and spent 16 years in the creative and client service departments of ad agencies, ending up as resident director of Lindsay Smithers-FCB in KwaZulu-Natal. Email Chris on and follow him on Twitter at @chrismoerdyk.
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The print media have benefitted from accepting advertising for unproven "health products" (e.g. Sunday Times Lifestyle magazine's advertising of SA Natural Products over many months in 2011). They should not whinge about having to pay more to keep the ASA functional. The PMSA should be taking responsibility for setting a standard such that its members do not even accept advertising for unproven health products in the first place!
Surely Chris Moerdyk must be aware that the Solal products he seemingly supports have never had their safety or efficacy (whether they "work" or not) independently verified - let alone their "quality." Those capsules, tablets and syrups could contain anything from useless fillers (e.g. chalk dust) to toxic heavy metals (e.g. lead) and he would not be any the wiser. These products are not just "nutraceuticals." They are medicines by virtue of their claims to be suitable for use in a variety of medical conditions. In July 2012 in South Africa we do not have a legal definition of "nutraceutical" or for that matter of "food/dietary/nutritional supplement."
According to the Minister of Health's written answer in parliament on 29 October 2010, there are about 155,000 complementary medicines on the market that have *not* had their quality, safety or efficacy independently verified by a regulatory authority. (These include Solal's products).
It is the unfortunate pharmacist who is put at risk in order to make a living and is the final guarantor that such products meet the required standards. Health shop owners and assistants usually do not have the training to assess whether or not the products they sell are of sufficient quality. Consumers are most at risk - being duped by false claims and fancy packaging (which may cost more than the very contents).
Advertisers of such products have gotten away for decades with "brazenly manipulating" the public into spending their disposable income on "promises of better health" with minimal or no evidence for their claims. Publishers and broadcasters of these advertisements have clearly been willing partners in this process.
The ASA has at least ensured that the public have been protected from a few of the most egregious advertising claims made for the overabundance of "health products" available.
The "large pharmaceutical company" to which Chris Moerdyk refers is Solal Technologies; actually a rather moderate sized 'neutraceutical' compay selling a wide range of alternative medicines. That is one example of the way Moeryk twists the truth in this article.
He is slso guilty of blatant falsehoods. I refer to the statement: "coming a small group of four health industry activists who by their own admission have never bought or used any of the company's products". Many of the complaints with the ASA against Solal advertisements were laid by me – and I have never admitted anything of the sort. Several of those complaints have received a response in my favour from the ASA - most have yet to have any decision because of ASA inefficiencies.
Let’s leave aside the fact that there is no requirement for a complainant to the ASA to actually have purchased the product in question. And let’s leave aside the fact that I am a consumer of the adverts themselves – by virtue of their placement in the newspapers I read. Lets also set aside the moral requirement of advertisers to tell the truth.
I am a consumer of health products. I am a consumer of products that Solal sells. My ex-wife used to buy plenty of Solal products – on a pharmacy account which I paid. I personally have bought Solal products. However – ever since their legal demand in response to my perfectly reasonable ASA complaints - I obviously no longer care to support them and buy competitors products instead.
Moerdyk is suggesting that I am one of the four who he claims has never consumed a Solal product – or that I am the ‘actual’ consumer who has only submitted one complaint. Either way – the statement is wrong.
It is outrageous to claim that I am not a consumer. And that type of SLAPP action in response to valid complaints is an outrageous abuse of a financial imbalance.
I made it clear to Moerdyk in a private email ome months ago that I had consumed alternative health products. It is irresponsible of one who commands the position he does to make false claims like this.
I agree with the thrust of the article, that the ASA does indeed need to get its act together. But I am dubious about the ‘facts’ presented – like the above, I believe they are twisted to support his own views about unfettered and unregulated advertising. Views which alarmingly appear to be aligned with the 'neutraceutical' company whose product he has punted in other articles, and who have been liberal with the truth in their advertising.
Its hard to comment except at the risk of sounding like one has an "axe to grind" maybe a body like the ASA needs to carry out its business - but this lot - to the chopping block.
South Africa
