In brief: prohibited and controlled advertising in South Africa

Prohibited and controlled advertising

What products and services may not be advertised?

Save for the ban on the advertising of tobacco products, there is no express ban on any other products. However, it is illegal to advertise any products that it is illegal for any person to possess or use under South African law.

The Code of Advertising Practice (the Code) similarly does not prohibit the advertising of any products or services to the extent that those products or services can be lawfully provided in South Africa. The Code's prohibitions go to specific advertising techniques and methods in general and in respect of specific goods or services discussed elsewhere in this document. These are in addition to the prohibitions against advertising that goes against the Code's general principles including prohibitions against advertising that:

• plays on fear without justification;
• contains anything that might lead to or lend support to acts of violence;
• contains anything that might lead to, lend support to or condone criminal or illegal activities;
• contains content that is discriminatory or perpetuates gender stereotypes in a manner that is not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom; or
• includes sounds that are likely to create a safety hazard.

Are certain advertising methods prohibited?

There are no express prohibitions on any specific advertising methods or techniques to the extent that they are executed in accordance with the provisions of the Code and its general principles. This includes the requirement that advertising should be legal, informative, factual, decent and honest. That being said, there are also specific prohibitions against advertising that:

• plays on fear without justification;
• contains anything that might lead to or lend support to acts of violence;
• contains anything that might lead to, lend support to or condone criminal or illegal activities;
• contains content that is discriminatory or perpetuates gender stereotypes in a manner that is not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom; or
• includes sounds that are likely to create a safety hazard.

What are the rules for advertising as regards minors and their protection?

The Code's general rules in respect of advertisements aimed at children are set out in clause 14 of section II of the Code. The sub-clauses of clause 14 provide general principles for advertising that is aimed at children or that might have an effect on them in various contexts, including:

• clause 14.1 (Children and safety), which provides as a general principle that any such advertising should not contain statements or visual representation that might harm children mentally, morally, physically or emotionally (14.1.1.1 of section II);
• clause 14.2 (Children's credulity and lack of experience), which prohibits advertisements that seek to exploit the credulity of children or their lack of experience or strain their sense of loyalty (14.2.1 of section II);
• clause 14.3 (Portrayal of children), which prohibits advertising that portrays children as sexually appealing or provocative or in any manner that involves sexual innuendo; and
• clause 14.4 (Use of children in advertising), which seeks to draw advertisers’ attention to the fact that the use of children in advertisements should also be done in compliance with South African labour laws.

The Liquor Act 2003 (the Liquor Act) also prohibits advertisements of any liquor or methylated spirits in a false or misleading manner or in a manner intended to target or attract minors (section 9). Similar prohibitions can be found in Appendix A of the Code, which relates to the advertising of alcohol products whose very first principle is a caution against liquor advertising that is ‘directed at persons under the legal drinking age’. Appendix A prescribes additional restrictions aimed at protecting children, including restrictions on the timing and placement of television, radio, cinema, print, advertorial and digital advertisements.

Are there special rules for advertising credit or financial products?

Advertisers of capital or financial products are required to observe the general provisions of the Code and to ensure that consumers are fully aware of the nature of any financial commitments that they may be making by responding to any advertisement (clause 6.1 of section III). Advertisers of financial products also bear the responsibility to ensure that their advertisements do not wittingly or unwittingly take advantage of consumers' lack of experience or knowledge of the complexities of financial products (clause 6.1 of section III).

Are there special rules for claims made about therapeutic goods and services?

The Code does not prescribe any specific rules in respect of advertising claims made in respect of therapeutic goods or services. The South African Health Products Authority (SAHPRA) is the relevant regulatory authority for the regulation of health products intended for human and animal use in terms of, among others, the Medicines and Related Substances Act 1965 (MRSA). The MRSA deals with various matters in respect of medicines and related substances, including provisions that allow for the promulgation of regulations and sector codes in relation to the marketing of those products. The MRSA also expressly prohibits:

• the publication or distribution of false or misleading advertisements concerning any medicines, medicinal devices or in vitro diagnostics (IVD); or
• claims to the effect that the therapeutic efficacy and effect of any medicine, medical device or IVD is other than as stated by SAHPRA, or suggestions that any medicine, medicinal device or IVD should be used for a purpose or in circumstances other than stated by SAHPRA (section 20).

Appendix B of section II of the Code prohibits advertising claims:

• in respect of cosmetic products that convey the impression that cosmetic products provide medicinal benefits (clause 7(a)(v));
• in respect of cosmetic products that refer to medical practitioner endorsements unless those claims are not in breach of any medicinal code of ethics and can be substantiated (clause 7(a)(ix)); and
• in respect of specific conditions of the hair and scalp (clause 8(a)(i)).

Are there special rules for claims about foodstuffs regarding health and nutrition, and weight control?

The Code's rules in respect of advertisements relating to food and beverages are set out in Appendix J of Section II. Appendix J deals with food and beverage advertising in general, and in particular insofar as it relates to children. In line with the general principles of the Code, Appendix J requires food and beverage advertising that is honest (clause 4 of Appendix J) and not misleading in respect of the material characteristics of food and beverage products (clause 6 of Appendix J). Appendix J also has various prescriptions and principles aimed specifically at protecting children, which are aligned with the principles of the Code in general relating to substantiating claims and testimonials, refraining from advertising techniques that exploit the inexperience and credulity of children under 12 years of age and generally avoiding targeting children under 12 years of age, particularly to the extent that the products in question do not represent healthy dietary choices and healthy lifestyles.

What are the rules for advertising alcoholic beverages?

The Liquor Act prohibits advertisements of any liquor or methylated spirits in a false or misleading manner or in a manner intended to target or attract minors (section 9). Similar prohibitions can be found in Appendix A of section II of the Code, which relates to the advertising of alcohol products. Appendix A provides various restrictions on the advertising of alcoholic products, based on the following principles:

• advertising may not be directed at persons under the legal drinking age (aimed to prevent the underage appeal of drinking);
• advertising may not portray the encouragement of irresponsible alcohol consumption or feature risky or excessive consumption;
• advertising may not imply that the consumption of alcoholic beverages is essential to business, social, academic or athletic success or acceptance, or that refusal to consume an alcoholic beverage is a sign of weakness;
• advertising may not persuade people in an improper manner to prefer a drink because it is higher in alcohol content or because of its intoxicating effect – however, advertisers may present factual information on alcohol strength for the guidance of consumers;
• advertising may not suggest health benefits or consumption or depict or include pregnant women or promote consumption of alcohol during pregnancy;
• advertising may not suggest any association with aggressive, violent or antisocial imagery or behaviour, illicit drugs or drug culture;
• advertising must include clearly visible and noticeable responsibility messaging;
• digital advertising and direct communications should also follow the principles of the Code and Appendix A; and
• alcoholic product packaging and labels must clearly indicate that products contain alcohol and should not be directed at persons under the legal drinking age.

Appendix A also prescribes additional restrictions aimed at protecting children, including restrictions on the timing and placement of television, radio, cinema, print, advertorial and digital advertisements. This includes the requirement for alcoholic beverage advertisements across each of these media to carry, as a minimum requirement, the statement ‘Not for persons under the age of 18’.

Aware.org, the liquor industry association for responsible alcohol use, has its own code of conduct for advertising, based on these principles.

What are the rules for advertising tobacco products?

The Tobacco Products Control Act 1993 prohibits the advertising or promotion of tobacco products through any direct or indirect means, including through sponsorship of any organisation, event, service, physical establishment, programme, project, bursary, scholarship or any other method (section 3).

Are there special rules for advertising gambling?

The Code does not prescribe any specific rules in respect of the advertising of gambling or gaming. Gaming is a matter of concurrent national and provincial regulation in South Africa in accordance with the National Gambling Act 2004 (NGA) and various provincial gambling and gaming statutes. Section 15 of the NGA prohibits the advertisement or promotion of any gambling activity:

• that is false or misleading;
• that is unlawful or misleading in terms of the NGA or any other provincial laws; or
• that is intended to target or attract minors.

The NGA also requires advertisements relating to gambling activities to include a statement warning against the dangers of addictive and compulsive gaming and to refrain from making any statements or including any element that directly or indirectly promotes or encourages the removal of excluded persons from the excluded persons register. In terms of the National Gambling Regulations, all advertisement of gambling machines, activity or premises must, among other things: include a statement warning against the dangers of addictive and compulsive gambling; include the name, toll-free number and slogan of the National Responsible Gambling Programme; and reference the fact that only persons aged 18 years or over may participate in gambling.

Specifically, advertising in respect of gambling must not, among other things:

• contain any lewd or indecent language, images or actions;
• portray excessive play;
• imply or portray any illegal activity;
• present any game, directly or indirectly, as a potential means of relieving financial or personal difficulties;
• exhort gambling as a means of recovering past gambling or financial losses;
• contain claims or representations that persons who gamble are guaranteed personal, financial or social success;
• represent or imply that gambling is an alternative to employment or a means of acquiring financial security, that winning is the probable outcome, or that gambling involves skills or that it is an investment;
• be placed at venues where the majority of the audience may reasonably be expected to be under the age of 18 years; or
• be placed on an outdoor display directed at schools, youth centres or tertiary education institutions.

Similar prohibitions are set out in various provincial gambling laws, which may be narrower or broader, or include additional restrictions, depending on the province. For example, the Limpopo Gambling Act 2013 simply replicates the NGA's provisions, while the Mpumalanga Gambling Act 1995 (section 40) includes a prohibition against the advertising of gambling activities at or in close proximity to a school or another place that is dominantly frequented by minors. In Gauteng, it is prohibited for any person to advertise or distribute any information concerning gambling in respect of a gambling licence that is not in force (section 71 of the Gauteng Gambling Act 1995), or to publish advertising that constitutes undesirable advertising in terms of the Gauteng Gambling Regulations.

What are the rules for advertising lotteries?

The Code does not prescribe any specific rules in respect of advertising lotteries. Lotteries are regulated by the National Lotteries Commission in accordance with the Lotteries Act 1997, which makes provision for the promulgation of regulations on the manner in which a lottery may be advertised.

Lotteries incidental to exempt entertainment may be advertised through: the postal service; newspapers; pamphlets; and radio stations not broadcasting nationally.

An advertisement of a lottery incidental to exempt entertainment must state:

• the purpose of the lottery incidental to exempt entertainment concerned;
• the beneficiary of the lottery;
• the price of the tickets;
• where the tickets will be sold;
• the closing date for participation in the lottery;
• when the draw will take place;
• the manner in which the winner or winners of the lottery shall be determined;
• the prizes to be won in the lottery;
• the fact that the determination of the winner or winners shall be final and that no correspondence in that regard may be entered into;
• the fact that prizes may not be exchanged for cash amounts;
• the fact that all prizes shall be allocated; and
• how the winners shall be notified. 

Any notice of advertisement of a private lottery may only: be exhibited, published or distributed on the premises of the social or sporting club for whose members the lottery is conducted or the premises on which the persons for whom the lottery is conducted ordinarily work or reside; and contain the text printed on the tickets for the private lottery.

Accordingly, any advertisement of a private lottery may only contain information on the closing date of the private lottery, the price of the ticket and the date of the draw of the private lottery.

Tickets for a society lottery may only be advertised, marketed, promoted or sold in South Africa. A society lottery may not be advertised, marketed or jointly promoted with another society lottery.

A society lottery may only be advertised for the promotion of the society conducting the society lottery or on whose behalf it is conducted, or for other purposes approved by the National Lotteries Commission Board that are not for private gain of a commercial undertaking. 

Any marketing material in respect of a society lottery must state:

• the purpose of the lottery;
• the price of the tickets;
• where the tickets will be sold;
• the prizes to be won;
• the closing date for participation in the lottery;
• when the draw will take place; and
• when and where the names of winners will be published.

What are the requirements for advertising and offering promotional contests?

The legal requirements for promotional competitions and the rights of consumers who participate in any such competitions are set out in the Consumer Protection Act 2008 (CPA), and advertisers that intend to run promotional competitions are encouraged to obtain legal advice in that respect before doing so. The CPA does not, however, prescribe any substantive rules for the advertising of any such competitions. For completeness, the CPA prescribes that any advertisement of the promotional competition is required to clearly state:

• the benefit or competition to which the advertisement relates;
• the steps required by a person to participate in the promotional competition;
• the basis on which the results of the promotional competition will be determined;
• the closing date for the promotional competition;
• the medium through or by which the results of the competition will be made known; and
• any person from whom, any place where, and any date and time on or at which a person may obtain a copy of the rules of the promotional competition and a successful participant in the promotional competition may receive any prize.

The Code itself does not provide any rules for the advertisement of promotional competitions in general, except to note that the Advertising Regulatory Board may require substantiation in the form of a legal opinion that the promotional competition is legal. The Code also requires that the value of any cash prizes advertised in respect of a promotional competition should be inclusive of VAT (4.1 of section III). The Code does, however, provide specific rules for advertisements in respect of fundraising competitions and states that these should only be published if:

• the promotional competition conforms to the relevant legislation;
• the prizes offered are already available or guaranteed;
• the prizes will be awarded irrespective of the number of entries received and that the competition will not be cancelled once the advertisement has been published; and
• a closing date for entries is stipulated as well as a date by which the name of the prize winners will be published in at least one major regional or national publication.

Are there any restrictions on indirect marketing, such as commercial sponsorship of programmes and product placement?

The Code does not prescribe any specific rules in respect of indirect marketing techniques. However, all television broadcasting licensees are required to comply with the Regulations relating to the definition of advertising and the regulation of infomercials and programme sponsorship in respect of broadcasting activities published by the Independent Communications Authority of South Africa under GNR.426 of 1 April 1999 (the Advertising and Infomercial Regulations). While the Advertising and Infomercial Regulations do not prohibit programme sponsorships, they require television broadcasting licensees to retain editorial control in relation to the sponsored programme, and prohibit them from accepting any programme sponsorships in respect of news or current affairs programmes except for weather forecasts or sports results bulletins that form part of a news programme broadcast (Regulation 5.1 to 5.4). In addition, television broadcasters are required to ensure that the depiction of the name, logo, product or service of a programme sponsor is subordinate to the content of the sponsored programme and does not receive undue prominence, whether it appears before, during or after a sponsored programme (Regulation 5.5).

The Advertising and Infomercial Regulations also prohibit product placement in news or current affairs programmes, and require product placement in non-news or current affairs programming to be subordinate to the content of the programme (Regulations 5.6 and 5.7).

Briefly give details of any other notable special advertising regimes.

There are no other notable special advertising regimes.