Wednesday, February 17, 2016


Dear Consumers,
Thembi  Msibi the ASA's
          I was interested to see that the South Africa Advertising Authority (ASA) has been telling a judge in the High Court things which in my experience are not true.
          In her Consumer Column in the Sunday Times Megan Power reported on the case involving the ASA’s efforts to discipline the Medical Nutritional Institute (Institute). This firm is in the business of making complimentary medicines – those that are made from plants, minerals etc.
          Having decided that the Institute’s advertised claims for its AntaGolin product, which was said to combat insulin resistance and help with weight reduction, were unsubstantiated the ASA wanted to issue an ad alert.
          This would have meant that all ASA members, the majority being media companies, would have refused to accept the company’s AntaGolin ads unless certain conditions were met.
          The firm successfully applied to the Johannesburg High Court to prevent the ASA from doing this and the order will remain in force until a R17-million action for damages brought against the ASA by the company has been concluded.
          It is also suing Doctor Harris Steinman for R200 000 for defamation. He was one of two people who complained about the ads that the firm says are not at all misleading.
          The ASA is appealing this judgement in which it was also ordered to remove all references on it website critical of the Institutes ads.
          At the beginning of her column Power stated that the ASA “protects consumers against misleading and unsubstantiated advertising.” Well I have first hand experience that shows that although it professes to be impartial it in not when its own media members are involved. And I have conclusive evidence of a deplorable case where the ASA has failed to protect the public in favour of one of its members.
          According to Power the ASA told the judge the following: It claimed its code was a contract between members of the advertising industry and members would not publish adverts that did not comply with it. It did not compel anyone to comply with its rules, but if advertisers wanted to publish adverts in media owned by its members they were then required to do so.
          “Publishing misleading advertising is intrinsically harmful to consumers, whether or not products cause actual physical harm,” the ASA maintained. “It is only the ASA that monitors the advertising industry as a whole and responds to complaints speedily and effectively.
          “The ASA’s complaint resolution turnaround is an impressive 30 days and its rulings are posted to its website.”
          I have made several complaints to the ASA and I would have made more if they had accepted them. Not one of them has been upheld. It surely can’t be just a coincidence that my experiences with the ASA make absolute nonsense of the claims mentioned above that were made before the judge. It could of course be that the “impartial” ASA doesn’t give the same consideration to complaints from people like me who have openly criticised its shortcomings on my blog as opposed to those who don’t.
          Here are examples:    
·      The most glaring ones that show how untrue these claims are appear in the Herbalist advertisements in the The Citizen daily newspaper. Many of the ads for such things as penus enlargements and instant wealth are so clearly a pack of lies that even the editor agreed with me that they are not believable. But when I complained about these to the ASA it refused to take my complaints and generally gave me the run around with the result that pages of these lies have continued to appear in that paper on a daily basis. (citizens dubious ads.html) And what makes this even more deplorable is that The Citizen is one of the ASA’s members through Caxton, the group that owns it.        
·      Another ASA member is the Johannesburg based Sunday Times. But when I complained about some of its get-rich-quick investment ads that often resulted in poor people being defrauded of their life savings the complaints were accepted and then conveniently lost. The result: Nearly a year and half later I got an apology and was told that because of the delay they could not finish what they had started(bungling asa.html). To show you what a humpty dumpty organisation the ASA is this is what a member of its staff wrote to me during this long running affair. “We note that your complaint refers to a Sunday Times advertisement. Please note that the ASA deals with and investigates specific advertisements.”
Here are some other reasons why what the Judge was told was not true:

·      The ASA maintained it is the only organisation that   “monitors the advertising industry as a whole.” The word monitor as far as I could establish means to “keep something under continuous scrutiny.”  Well from what I was told the ASA does no such thing. It only reacts to complaints. Also it conveniently doesn’t have the power to tell any of its media members to stop accepting any ads until somebody has complained about the ads themselves and the ASA has ruled that they are not acceptable. So a paper like The Citizen can go on coining money by promoting charlatans in its Herbalists ads which are there for anybody, as well as the people who run the ASA, to see. Nothing will be done unless somebody complains and the complaint is upheld.  But then the ruling would only apply to the one ad complained about and there are pages of them all making similar extremely dubious claims. THAT’S THE ASA’S VERSION OF “MONOTORING THE INDUSTRY.”
·      Although it told the Judge that “publishing misleading advertising is intrinsically harmfully to consumers” it is doing such a great job of protecting consumers that The Citizen’s continues to carry a stack of “misleading advertising,” which it has been doing for years. Sorry that description is far too complimentary. Many of the ads contain complete and utter lies.                  
·      The ASA’s claim that its “complaint resolution turnaround is an impressive 30 days” makes out that this is how long it takes to get a ruling. This might happen in some cases but I can’t see how it can possibly be anything like the norm. I say this is because once a complaint has been received the ASA then has to get the advertiser’s side of the story before it can judge the issue. That can take weeks if not months. And as I found out when crooks place what are very obviously dicey ads the naïve ASA spends ages trying to get them to reply and when this doesn’t happen the ASA decides it can’t make a ruling. But it is so inconsistent that in at least one case that I know of it came to a decision without getting the advertiser’s version.

          In the court case the Institute argued that as it was not a member of the ASA it did not believe that it has any jurisdiction over it.  It contended that the Medicines & Related Substances Control Act as well as the Consumer Protection Act provided sufficient protection for consumers regarding its products.
          The ASA countered that it had been given statutory powers by the Electronic Communications Act to decide if ads carried on TV - this was where the controversial AntaGolin ads had mainly appeared - by its members complied with its code. This applied whether or not the advertiser was a member of the ASA or not.
          One of the ASA’s problems is that it tries at times, like in this case, to discipline firms that are not members of its organisation and that’s where things become very murky.          
          On one occasion it found in favour of university professor Rudi de Lange who complained that a so called Dr Semba was exploiting consumers by saying on his website that his “psychic powers” could cure epilepsy, high blood pressure and other ailments. Semba’s unbelievable claims were similar to the ones being made in The Citizen ads for which the ASA refused to allow me to lodge any complaints.
          Having spent some time trying to get Semba’s side of the story, the ASA gave up when he did not reply and accepted what the Professor had to say.
          The ASA then showed how ridiculous it is when it tried to get Semba to stop what he was doing when it has no control over websites. So Semba continued to proclaim to the world the benefits of his psychic powers as if nothing had happened. 

          In her report headlined “Watchdog in chains as advertiser fights back” Power’s view was that if this legal battle resulted in the ASA being barred from making rulings about misleading and unsubstantiated advertising by non-members it could leave consumers “vulnerable to exploitation.”
          But it’s doing that already because it is protecting them in some cases but not in others as my experiences shows particularly as far as The Citizen is concerned. There may of course be other similar cases that I don’t know about
What’s more when it comes to making misleading statements the ASA is in a league of its own. Apart from what I have already mentioned it boldly stated on its website that it “regulates all advertising which should be legal, decent, honest and truthful and no advertisement should bring advertising into disrepute or reduce confidence in it.”
In my case this boast proved to be “misleading and unsubstantiated.” So the sooner this apology for an advertising police force disappears the better and is replaced by a much more effective organisation. In its present form its own promotional advertising screams out how bad self-regulation is as a means of controlling the unacceptable behaviour that affects consumers in any industry.
“The budget intended for the protection of consumers is being blown on defending legal attacks,” Power wrote. “The Medical Nutritional Institute’s lawyers represent several other companies including Herbex, Solal, Groupon and Ultimate Sports Nutrition which have challenged the ASA.”
So it looks as though the ASA could have to defend actions for millions more.
Jon, a Consumer Watchdog who unlike the ASA is not employed by any industry and as such can claim to be genuinely independent.

*Note: The ASA was established by its media members as a self-policing mechanism for advertising. It is run on similar lines to that other great media pillar of justice the South African Press Council. Both of them claim to be impartial while showing a distinct bias towards their media masters.

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