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Checkers ordered to submit all its future advertising to the ACA Advisory Service
Checkers ordered to submit all its future advertising to the ACA Advisory Service

HeyDays turn to dark days for Checkers


Eben van Wyk & Regardt Botes via Biz Community - Jul 13th 2011, 11:55

The Advertising Standards Authority (ASA) of South Africa has a whole arsenal of possible sanctions it can impose on advertisers for breaching its advertising code or prior rulings. These sanctions usually take the form of the withdrawal of the advertisement in its offending format or, in some exceptional circumstances, an order to publish an adverse publicity statement and summarised version of an adverse ruling. 

One of the harshest sanctions

In the recent matter of Checkers "Heydays" Promotion/Pick n Pay/17435, the ASA imposed one of the harshest sanctions to its disposal on Checkers, which was ordered to submit all its future advertising to the ACA Advisory Service, at its own cost, prior to the publication thereof, for a period of three months.

The well-recognised advertisements for Checkers' Heydays promotion contained the statement, "HeyDays - It's Big It's Back It's Unbeatable" and in an email version of the advertisement it stated "We're giving you unbeatable deals for this week only."

According to Pick n Pay, the hypothetical reasonable consumer would understand the claims, and more particularly, the word "unbeatable" to mean that all the products advertised as part of the Heydays promotion would not be found cheaper anywhere else during the promotional period.

Similarly, where any of the advertised products are linked to a free product giveaway, the claims would be understood to mean that, in respect of each of such offer, an equivalent offering would not be found anywhere else for the duration of the relevant period.

Checkers' argument

Checkers argued that it has used the same or similar "unbeatable" slogan with its Heydays promotion for almost 10 years, and that these slogans qualify as promotional trademarks. It also submitted that it is unlikely that the hypothetical reasonable consumer would interpret the phrase "It's unbeatable" as a literal claim that each of the products contained in the advertisements will be the cheapest at Checkers or that no similar equivalent offerings may be available elsewhere.

The ASA agreed with Checkers in respect of the claim "HeyDays - It's Big It's Back It's Unbeatable" and held that the hypothetical reasonable person would most likely understand the word "unbeatable" in this context to be a reference to the scope, size or extent of the entire Heydays promotion, and not each specific product advertised, and that the claim was therefore not in breach of the code in the manner argued by the complainant.

However, the ASA determined that the reasonable consumer would interpret the claim "We're giving you unbeatable deals for this week only" to refer to specific products and specific prices and that this claim is therefore capable of objective substantiation. Checkers was unable to substantiate this claim and it was therefore held to be misleading and in breach of the ASA Code.

On 18 January 2011, Checkers received a suspended three-month pre-clearance sanction in the matter of Checkers/Pick n Pay/16439. In this ruling, Checkers failed to provide substantiation in respect of pricing claims for OMO washing powder and Huggies nappies.

At its own cost

In that matter, the ASA suspended the pre-clearance order on condition that Checkers is not found to be in breach of the initial ruling, or is not found to make unsubstantiated comparative pricing claims, within six months from the date of ruling.

Given that Checkers had been found to have made the unsubstantiated comparative pricing claim, "We're giving you unbeatable deals for this week only", it was ordered to submit all its advertising for a period of three months to the ACA Advisory committee, at its own cost.

This sanction will not only involve out of pocket expenses for Checkers in respect of all its future advertisements, but will also involve a big administrative burden and hamstring the internal turn-around time of its advertisements as ACA pre-approval could be time-consuming in some circumstances. Checkers' marketers might also be limited in their "creative freedom" to create advertisements.

This ruling shows the significant impact that non-compliance with the ASA Code can cause to advertisers, and the importance of taking the provisions of the code into account in all forms of advertising. The ruling also highlights the fact that even "informal" email advertisements can cause great inconvenience to advertisers and that all forms of advertising should comply with the ASA Code.

About the authors:

Eben van Wyk is a director and national practice head of Cliffe Dekker Hofmeyr's Intellectual Property practice; he has specialised in intellectual property law for the past 10 years and advises clients on advertising law and matters before the Advertising Standards Authority.

Senior associate Regardt Botes specialises in trademark- and advertising-law-related matters and has experience in defending and instituting complaints at the ASA. 

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