ACA on proposed alcohol advertising ban

In the Government Gazette of 3 November 2008, the Minister of Transport Jeff Radebe published a proposed amendment of the National Road Traffic Regulations that states:

No person may -

(a) display or cause to be displayed any liquor product advertisement or any advertisement depicting a liquor product visible on a public road, or permit it to be so displayed;
(b) display any liquor product advertisement or any advertisement depicting a liquor product visible from a public road, on any land adjacent a public road or land separated from the public road by a street, or permit it to be so displayed.”

Comments Roper, “When the Minister of Transport gazetted the proposed amendment of the National Road Traffic Regulations, he simultaneously called for interested parties to submit in writing any objections, inputs or comments to the Department of Transport by 4 December 2008. To date, submissions were sent from the ACA, the Association for Responsible Alcohol Use (ARA), SALBA, South African Breweries (SAB), VinPro, Cellars, KWV, Initiative Media, the Marketing Association of South Africa (MASA), Brandhouse and Out of Home Media Association of South Africa (OHMSA).”

Negative economic effect

“The ACA is concerned that if passed, the proposed legislation would have a negative economic effect on the communications and advertising industry - from the SMMEs that install and maintain many of the billboards and who earn a living from moving billboards to the bigger agencies and media houses.”

Affected media would include billboards, street pole advertising, moving billboards, branded delivery vehicles, advertising on shop or factory fronts and any other form of advertising facing or visible from a public road.

The proposed regulation, however, reaches far deeper than the economic impact it will have on the advertising profession.

“Within the principles that the legislation will have to consider are our constitutional rights - and the most significantly affected by the proposed regulation is freedom of speech. Everyone has the right to freedom of expression, which includes: freedom of the press and media and the freedom to receive or impart information and ideas. This alone is a clear indication that the advertising profession should be afforded the same rights and the same protection,” says Roper.

"Unwarranted intrusion on free speech"

“Furthermore, the moment a branded delivery vehicle is seen from a public road or drives on a public road, it would be deemed illegal. This is an unwarranted intrusion on free speech, freedom of expression and the freedom to communicate, and violates the basic right of free trade as stipulated in Section 22 of the South African Constitution.”

Roper further adds, “Governments across the globe have tried to prohibit certain product advertising and these specific case studies should be considered within the South African context.”

In RJR-McDonalds v Attorney-General of Canada (1991), the Quebec Superior Court struck down a statute that prohibited the advertising of tobacco products. Although the product differs, the same principles apply. The court found that the evidence provided failed to prove even a causal connection between advertising and tobacco consumption and as such was dropped.

A further case to consider is the third US Circuit Court of Appeals, which struck down a Pennsylvanian law that banned alcohol-related advertising in college newspapers. The court said it was unconstitutional because the state was unable to show that such a law was necessary to discourage underage or excessive drinking.

“In short,” says Roper, “there is no conclusive evidence that advertising bans have the effect that consumption of alcohol is reduced.”

“The ACA therefore proposes a strategy of self or co-regulation, education and awareness of the effects of alcohol consumption, ie responsible advertising rather a ban.

“It is also important to point out that extensive self-regulation of liquor advertising in all its forms already exists in the Advertising Standards Authority Code of Advertising Practice which is highly respected and subscribed to by many professional bodies and their members, including the ACA, OHMSA, National Association of Broadcasters South Africa, Print Media Association, the Direct Marketing Association of South Africa and Cinemark. The code has the interest of the public at heart and the penalties sanctioned for contravention are severe,” she concludes.