The regulation of False Advertising in South Africa: An analysis of The Consumer Protection Act 68 of 2008 and Self-Regulation

• Author: Mupangavanhu, Y.
• DOI: https://doi.org/10.47348/SAMLJ/v33/i2a5
• Published date: 13 January 2022
• Date: 13 January 2022
• Citation: (2021) 33 SA Merc LJ 260
• Pages: 260-288

THE REGULATION OF FALSE ADVERTISING

IN SOUTH AFRICA: AN ANALYSIS OF THE

CONSUMER PROTECTION ACT 68 OF 2008

AND SELF-REGULATION

YEUKAI MUPANGAVANHU*

Associate Professor, University of Western Cape

DOMINIQUE KERCHHOFF**

Former student, University of the Western Cape

Abstract

The Consumer Protection Act 68 of 2008 (CPA) regulates the

provision of goods and services, the conclusion of consumer contracts as

well as the promotion and marketing of goods and services. It also

protects consumers from unscrupulous advertisers who use false and

misleading advertisements to induce consumers to enter into contracts

which they would otherwise not have concluded. This article seeks to

critically analyse the legislative provisions relating to false, misleading,

and deceptive advertising, and the seemingly accessible and efficient

legal redress mechanism created under the CPA. Self-regulation by

bodies such as the Advertising Regulatory Board, which is responsible

for the regulation of the advertising industry in South Africa, is also

discussed in detail. The article concludes that the co-existence of the

CPA and self-regulation is pertinent to ensure that consumers are

adequately protected from unscrupulous advertisements. This is

because self-regulation provides an additional layer of protection to

consumers. It is also argued that the forums created under the CPA

should be given powers to declare certain promotional activities and

advertisements unfair, unjust or unreasonable.

Keywords: Consumer Protection Act 68 of 2008; false and misleading

advertising; Consumer Goods and Services Ombud; marketing practices;

informed choices; self-regulation

*LLB (UF), LLM LLD (UWC).

** LLB, LLM (UWC).

260

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© Juta and Company (Pty) Ltd

IINTRODUCTION

Consumers are constantly bombarded with advertisements be it in the

form of print media, billboards, television or on social media. Suppliers

and businesses spend huge amounts of money trying to inform consum-

ers about their range of products and specif‌ic characteristics of their

individual brands.

1

This is because a good eye-catching advertisement

can determine how the public view the business thereby creating a sense

of brand loyalty amongst consumers,

2

as advertisements play a signif‌i-

cant role in inf‌luencing consumer choices. The issue arises when the

information contained in the advertisement is false, misleading or

deceitful. False advertising, also known as deceptive advertising, is

problematic since it misleads or deceives consumers about the products

or services sold by the manufacturer. This can result in consumers and

particularly the vulnerable members of society, not only making

ill-informed decisions or an error in judgement but also in losing their

hard-earned money.

3

An advertisement that contains deceptive infor-

mation is consequently bound to be prejudicial to consumers.

4

This is

because false advertising has the effect of inducing the consumer to enter

into a contract, which he or she would not have entered into or would

have probably entered into but on different terms.

5

It is therefore unfair

to a consumer who is not in a position to make an informed decision.

The article examines the protection of consumers from false or deceptive

advertising in South Africa. The current legal framework that governs

false advertising consists of a hybrid system that comprises the common

law, statutory legislation as well as a self-regulatory system. However, the

article only discusses how false or misleading advertising is regulated

under the Consumer Protection Act 68 of 2008 (CPA) and in terms of

1

Pardun (ed) et al, Advertising and Society: An Introduction 2 ed (Wiley 2014). Liebenberg,

‘Chapter 11: Out-of-home advertising’, available at https://www.pwc.co.za/en/assets/pdf/

enm-20120-chapter11.pdf, accessed on 12 December 2020. In 2019, an estimated amount of

R30.4 billion was spent only on advertising in South Africa. Internet advertising in South

Africa is expected to account for 25 per cent and it accounts for the second largest advertising

medium in the country after television and video. Mobile advertisements make up about

50 per cent of internet advertising revenue: see McQuerrey, ‘The positive effects of adver-

tising’, available at https://smallbusiness.chron.com/positive-effects-advertising-24688.html,

accessed on 11 February 2021. Guttman, ‘Advertising spending in South Africa 2018–2021, by

medium’ available at https://www.statista.com/statistics/386540/advertising-expenditures-

by-medium-south-africa/, accessed on 12 October 2020.

2

McQuerrey, ‘The positive effects of advertising’, available at https://small-

business.chron.com/positive-effects-advertising-24688.html, accessed on 11 February 2021.

3

Naudé & Eiselen, Commentary on the Consumer Protection Act (Juta 2015) 5.

4

Stoop, ‘The Consumer Protection Act 68 of 2008 and procedural fairness in consumer

contracts’ (2015) 18(4) PER/PELJ 1092 at 1099.

5

Stoop, (2015) 18(4) PER/PELJ 1092 at 1099.

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