Since 1962, the Advertising Regulatory Board (ARB), and the Advertising Standards Authority before it, have played a vital role in the South African advertising landscape.
It is the sole body that regulates advertising in the country according to widely accepted international standards. Not only does it provide consumers with a forum for complaints, but it also provides protection for brand owners through dedicated resources and mechanisms which are less costly and more expedient than procedures through the courts.
The High Court's determination that the ARB has no jurisdiction over non-members has been overturned by the Supreme Court of Appeal (SCA) confirming the ARB's powers of and position in advertising regulation.
The matter began when Colgate-Palmolive (a member of the ARB) lodged a complaint with the ARB arguing that Bliss Brands' (a non-member of the ARB) Securex hygiene soap packaging imitated its Protex hygiene soap packaging.
The complaint was adjudicated by the ARB, which decided that the Securex packaging had breached provisions of the Code protecting against the deception of trade source/trade connection and protection against imitation.
Bliss Brands was ordered by the ARB to withdraw the packaging. It appealed the decision to the High Court, which delivered its decision in 2021. The High Court decided that:
This determination was a devastating blow for the ARB and its members, as the inability to make rulings where non-members were concerned meant that the ARB's effectiveness would be severely undermined.
Furthermore, the weakening of the ARB's regulatory mechanisms caused concerns that a 'Wild West' would follow, with parties able to escape the application of advertising standards by withdrawing from ARB membership and jurisdiction.
The ARB and Colgate-Palmolive took the matter on appeal to the SCA, which decided that the High Court had erred in its decision.
Following consideration of the arguments raised by Bliss Brands in the High Court, the SCA upheld the ARB's appeal, making the following findings:
The SCA's decision is a welcome victory for the ARB, brand owners, and consumers. It has strengthened the ARB’s position as an effective regulator of advertising and given clarity to players within the print, digital, and broadcast media space in South Africa.