A pinch of salt takes away the sour of the Med-Lemon ad

Erick Smith, of the Durban law firm Garlicke & Bousfield Inc said, "the complainants, led by a business school professor, argued that the commercial undermined and despised African tradition and insinuated that African traditional healers were dishonest to their patients. They amplified their complaint by stating that the ad was contemptuous of traditional healing, presented white medicine as superior to traditional healing, disparaged and demeaned black people and generally made a mockery of African culture by playing on racial issues."

The commercial portrayed a scene with an African traditional healer misusing the Med-Lemon product and handing it, in a calabash, to a client who has a cold. The client states the "sometimes cold , sometimes hot " symptoms , "like flu but worse" , and thereafter black people queue outside the traditional healer for the treatment.

"In the first instance the Advertising Standards Committee ruled in favour of GlaxoSmithkline and the dissatisfied professor then lodged an appeal to the ASA's highest body against the ruling as he remained unpersuaded that the commercial was not offensive advertising," continued Smith.

"The matter, as one can imagine, necessarily had to deal with a cocktail of legal problems which ranged from Constitutional principles, regulation of racial issues, contractual issues between healers and patients and all of this within the context of relevant provisions of the Code of Advertising Practice ("the Code")."

"The Appeal Committee, with respect, correctly formulated its approach against the background of the freedom of expression provisions of the Constitution. The ASA, as a self-regulatory body, once again, had to walk the delicate tight-rope of balancing the conflict between fundamental rights and reasonable limitations to the exercise of such rights in the context of a democratic society based on human dignity, equality and freedom. The essence of such a value judgement is an objective one, the ASA ruled, and allegations of disparaging advertising cannot be assessed on the subjective views of individuals or particular sections of the South African community. The latter would conflict with the common law and the Constitution."

"The basis of the objective approach is the hypothetical reasonable viewer and there is no room in the enquiry for personal predilection ."

"Against this background, and with due consideration of the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act, the ASA found that the commercial did not racially discriminate against black people, nor was there any suggestions of racial superiority or inferiority or incitement for conflict. There was therefore nothing in the commercial that amounted to hate speech."

"The Appeal Committee reiterated that it is universally accepted that advertisers use hyperbole and harmless parody. Advertising contains innuendos and ambiguities, and to quote the ruling " an advertisement should be looked at with a large pinch of salt ". What is parody ? The ASA took guidance from the Oxford English Dictionary where parody is defined as " the composition in which the characteristic terms of thought and praise of an author are mimicked and made to appear ridiculous, especially applying them to ludicrously inappropriate subjects". In the context of the commercial the Appeal Committee found that to give the ad its literal meaning of being truthful would open one to ridicule. Clause 4.2.3. of the Code allows for harmless parody which is intended to catch the eye or to amuse with the proviso that it is clearly seen to be humorous and not likely to be understood as making a literal claim for the advertised product. It is unnecessary to deal at length with the Appellants furhter claim that a traditional healer is supposed to deal only in traditional medicine ('muti") and not Med-Lemon and that this amounts to misrepresentation. The Committee had no difficulty in dismissing this claim on the basis of contract and there was no basis for a tacit contractual term to be imputed that a client would in fact be prescribed any "muti"."

"Whilst the ASA remains mindful of offensive advertising it has reiterated that advertising by its very nature must be taken "with a large pinch of salt". In this particular case the hot fever of subjective sensitivities occasioned by the commercial should be treated with a Med-Lemon type of "muti" containing effervescent humour. The essential ingredient of this "muti" is harmless parody, which if compliant with the law and the Code and dispensed by the ASA , should eradicate any hot and cold flu-like symptoms," concluded Erick Smith.