‘Plain language’ or ‘easy speak’- call it what you want, but you need to use it: the Consumer Protection Act (CPA) requires all ‘suppliers’ to draft their customer facing documentation in a manner that their average consumer will understand. Some love this idea and others (lawyers
especially) hate it.
But what does this mean to you in your relationship with your consumer? Can the consumer demand to receive documentation in his or her home language? Does it mean that each and every consumer who enters your outlet must understand every clause in all of your agreements? The CPA deals with “plain language” in section 22 of the Act where it sets out that documentation must be provided in “plain language”, meaning that “an ordinary consumer of the class of persons for whom the notice, document or visual representation is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance and import of the notice, document or visual representation without undue effort”.
From this it follows that if your documentation is reasonable, in that your average consumer will understand it, then it will pass the test even if not every individual consumer understands all clauses 100%. It is a given that your average consumer is unlikely to understand Latin terms, so don’t use them. The same goes for technical terms or warranty terms – explain these in a simple way so that your consumer will understand them.
It is interesting to note that the CPA does not require suppliers to translate their documents into more than one of the official languages. This approach differs from the approach in the National Credit Act (NCA), which requires credit providers to draft and adhere to a language policy – sometimes requiring that documentation be made available not only in English.
BUT: even if your documentation is written in plain language, if it was clear to you that the consumer did not understand the agreement at all, and you nevertheless continued to enter into the agreement, this will not comply with the CPA. In terms of section 40 it is unconscionable for a supplier knowingly to take advantage of the fact that a consumer was substantially unable to protect his own interests because of physical or mental disability, illiteracy, ignorance, or inability to understand the language of an agreement.
If you are in doubt about the language used in your customer facing agreements or terms and conditions, we can help you to translate your documentation from “pre – CPA” to “plain language as required by the CPA” (and NCA).
I have previously heard someone saying: “Now that the CPA is in effect, it will be almost impossible to be creative in one’s marketing material – future marketing will be boring!”
Whether this is true or not is debatable, but the bottom line is that marketers need to be careful: the CPA provides for some clear rules when it comes to marketing. Some marketing practices are being prohibited outright whereas other marketing practices are allowed, but regulated strictly. There are in addition some general rules that apply to all types of marketing.
The intention of the CPA’s marketing provisions is clear: you may not mislead your consumer! This means that you will need to consider your marketing material and be sure that your average consumer will understand the message and not be misled.
There are a number of CPA sections dedicated to marketing. The reason is obvious: in our country there are a lot of uneducated and vulnerable people who may in the past have been lured into purchasing products or services for which they had no use. Because marketers were so clever and portrayed a convincing, but untrue, message about certain products which ultimately induced consumers to buy them, the legislator deemed it appropriate to provide some protection to these vulnerable members of society by creating rules that apply to marketing activities. The rationale of these rules is therefore that people should not be persuaded to spend their hard-earned money on products or services that do not have the qualities being portrayed in the marketing material.
We will discuss the various different marketing provisions in more detail in future posts. For now it is important to take note of the following:
- The general rule is that your marketing material may not be “false, misleading, or deceptive” in any way – whether direct or indirect;
- Some forms of marketing are prohibited. These include bait marketing (where you “bait” potential consumers into your stores while you know that you do not have stock of the ‘bait item’ to sell to them) and negative option marketing (where the consumer will be deemed to enter into an agreement if the consumer does not clearly decline a particular offer);
- Promotional competitions, loyalty schemes, promotions and catalogue marketing all have a lot of rules that apply to them and each time that you run any of these types of campaigns, you need to consider the rules very carefully to ensure that your campaign will comply with the CPA requirements;
- Direct marketing is not prohibited by the CPA as some people may believe. BUT a lot of rules apply, and once the Protection of Personal Information Bill comes into effect, even more rules will apply.
About Dommisse Attorneys
Dommisse Attorneys can assist you with your marketing campaigns to ensure compliance in terms of the CPA. For more information you can contact us by sending an email to firstname.lastname@example.org
We have all received the phone call or sms to say: “Congratulations, you have won!” (Often some exotic holiday), only to find out that you have not won any prize! You are no winner! Oh no! Now you need to attend some meeting, or purchase “points” in terms of some kind of scheme. So where is the so called prize?
This recently happened to someone I know. He received a sms – informing him that he had won R950 000. So we phoned… and what a surprise, after some questions and statements from our side (including of course a reference to the CPA), the person on the other side hung up. And hung up again when we tried to phone again. And again.
So what does the law say?
Before the Consumer Protection Act 68 of 2008 (“CPA”) came into effect, promotional competitions were governed by the Lotteries Act 57 of 1997 and Regulations. These pieces of legislation were difficult to interpret, which resulted in a lot of confusion and difficulty in compliance with the requirements. Since the enactment of the CPA, promotional competitions are regulated by section 36 and regulation 11 of this Act. The CPA does not outlaw promotional competitions. BUT: it regulates promotional competitions – meaning that a lot of rules apply.
A few of the DO’s:
- Check your “offer” to participate (your marketing material) – you need to specify some information during this process (participants should know what they are in for);
- Compile competition rules in accordance with the CPA requirements;
- Instruct an independent party to oversee and certify the conducting of the competition;
- Retain some specified documentation for a period of 3 years.
- A few of the DON’TS
- Don’t tell anyone that they have won a competition if they have not actually won it;
- Don’t charge an entry fee (a requirement that a participant must purchase goods or services to enter will be allowed in certain circumstances);
- Don’t force the winner to be present at the prize draw;
- Don’t force the winner to participate in marketing activities;
- Don’t charge more than R 1.50 for an electronic entry.
We are geared to assist promoters with the review and drafting of their customer facing documentation for promotions, competitions and similar campaigns. We can also assist with the actual prize draw (or oversee the process) and report on your compliance with the provisions of the CPA.