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 info@dommisseattorneys.co.za
