A David and Goliath battle over advertising that ended up in the Constitutional Court is not over yet as an independent brand company takes on multinationals for allegedly using the advertising regulator to wage legal battles outside the courtroom.
Bliss Brands, a small company that manufactures and sells cleaning products, was recently taken on by Unilever who complained to the Advertising Regulatory Board (ARB) about Bliss’s MAQ dishwashing liquid TV advert which said it outperformed the market leader, generally known to be Unilever’s Sunlight dishwashing liquid.
The commercial features a “Real Expert” claiming that MAQ dishwashing liquid has “more foam, more power, and cleans more dishes” than the “best-selling dishwashing liquid in SA”.
Unilever questioned this and asked for proof in accordance with the Advertising Code of Practice.
Bliss obliged and laid out the findings of internal tests validated by an independent third party — and won.
The ARB referred to a report by independent expert John Knowlton, who noted that Sunlight is the best-selling dishwashing liquid in South Africa, and therefore the product against which MAQ was compared. He concluded that MAQ significantly outperformed Sunlight in “foam height measurement”, “speed of fat removal”, and “foam stability evaluation”.
The ARB noted that Knowlton was an independent and credible expert and ruled that the commercial claims had been adequately substantiated and dismissed the complaint.
But this success is cold comfort for Bliss, which took the ARB all the way to the Constitutional Court this week over a case of soap packaging it lost before the same advertising body. Bliss is not a member of the ARB and argues that the non-statutory body wields huge power over advertisers who are not affiliated to it, thereby enabling multinational companies to win legal victories over smaller industry players without having the cases decided in court.
The case related to a complaint by multinational competitor Colgate-Palmolive that Bliss’s Securex soap packaging was too similar to Colgate-Palmolive’s Protex soap and exploited its advertising goodwill. Colgate-Palmolive is a member and a funder of the ARB.
The complaint went through three levels of adjudication within the ARB, ending with a ruling that Bliss must withdraw all advertising and stop distribution of its Securex packaging. Bliss took the matter to the high court on review and the ARB’s finding against a non-member was declared unconstitutional, void and unenforceable.
The ARB’s rulings are as effective as a court order, in some instances akin to an interdict granted by a court. The result is that non-members are now damned if they participate in the ARB’s processes or damned if they don’t.
— Bliss Brand’s lawyer Sara-Jane Pluke
This led the ARB and Colgate-Palmolive to take the matter to the Supreme Court of Appeal which found in their favour. Bliss then took the case to the Constitutional Court arguing that the ARB should not have such far-reaching power over non-members, and that its adjudicative processes were not procedurally fair for non-members.
This time Bliss lost the chance to have these constitutional issues decided. The country’s highest court did not grant them leave to appeal because Bliss willingly participated in the ARB’s processes.
Bliss marketing director Liezel Bygate explained why they went all the way in pursuing the case.
“We believe the ARB is empowered to make findings against us that are beyond their reach, and so we want clarity on that,” she said.
The battle is not over, with the soap packaging case going back to the high court.
Bliss’s lawyer Sara-Jane Pluke says: “The way things now stand, you have a self-regulating body ruling on trademarks and copyright — issues that should be decided in a court of law. And the ARB’s rulings are as effective as a court order, in some instances akin to an interdict granted by a court. The result is that non-members are now damned if they participate in the ARB’s processes or damned if they don’t.”
When it finds against an advertisement, the ARB informs the industry and instructs all members not to accept the “offending” advertising, or in this case, product packaging.
This, Bygate says, amounts to enforcement against non-members because ARB members and their affiliates effectively control the majority of the advertising industry.
Bygate says Bliss has faced numerous complaints. The first was a complaint by Sta-Soft manufacturers Colgate-Palmolive against the fabric softener MAQ Soft.
Bliss’s Securex soap, registered as a trademark in 2011, was on the market for eight years when a packaging redesign “in conjunction with an extensive advertising campaign” sparked the Protex complaint.
Efforts made to reach the ARB for comment for two weeks by phone, email and its website were unsuccessful. Unilever and Colgate Palmolive were both also contacted for comment or response by email and phone, but neither responded.
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