Developments in Alcohol Advertising: How We Market Today, Will Determine If We Can Market Tomorrow

On the 28th of January 2020, the Association for Alcohol Responsibility and Education (Aware.org) launched the new Code of Commercial Communications (“new Code”). It replaces the previous Code of Commercial Communication of Aware.org’s predecessor, namely the Industry Association for Responsible Alcohol Use (ARA).

All members of Aware.org (which includes South Africa’s leading alcohol beverage manufacturers, the wine producers’ association VINPRO, and many other others), are bound by the new Code. Working in collaboration with various industry players and the Government, Aware.org, with the assistance of its members, believes that it has an important role to play in “implementing sustainable solutions to the potential harm caused by the misuse and abuse of alcohol” in South Africa. On this basis, members have committed to “maintain high standards of responsibility and ethical conduct in all their commercial communication activities”. One of the key objectives of the new Code is to ensure that alcohol beverage advertising is directed only to adult consumers, and should not, in any way, appeal to persons under the legal drinking age.

The new Code is ancillary to the existing legislative requirements relating to alcohol beverage advertising in South Africa.  Many of the principles of the previous Code have been retained, with modification or elaboration where appropriate, in the new Code.

It is also made clear in the new Code that alcohol-free or non-alcoholic variants of alcohol brands fall under the umbrella of the new Code and should only be marketed to persons above the legal drinking age.

The so-called underage statement has been amended, from “Not for Sale to Persons Under the Age of 18” to “Not for Persons Under The Age of 18”, and certain requirements relating to the use of the underage statement have been amended. For example, where television adverts that are longer than 10 seconds, in addition to the display of the underage statement on-screen for the duration of the advert, it is now also required that it ends with a voiceover message of the underage statement, in the same language as the main advert. The new Code increases the minimum height of the underage statement to 15% of the advert height, instead of the 10% requirement in the previous Code.  The flight times for alcohol beverage adverts on television and radio are also more restricted in the new Code.

The new Code requires that all commercial communications must include responsible messaging in a manner that is clearly visible and noticeable to the consumer. Examples of responsible messaging warning statements mentioned in the Code are “Don’t drink and drive”, “Not for Persons Under 18”, “Pregnant Women should not Drink Alcohol”, and “Drink Responsibly. Don’t Drink and Drive”. Brand owners have been given until the 28th of January 2021 (i.e., twelve months) to amend their product packaging to include responsible messaging warning statements.

As a general rule, only persons that are, and appear to be, 25 years of age or older, may be shown in the act of drinking in an alcohol beverage advert. All members of alcohol brand promotions (in-store or otherwise), must be, and reasonably appear to be, at least 21 years of age or older.

In the area of sports, the new Code introduces a requirement that alcohol beverage adverts may not depict any person consuming alcohol before or during any athletic activity. In the case of sports teams with members under the legal drinking age, such teams may not be sponsored by alcohol product brands (or non-alcoholic variants of alcohol brands) in a manner that creates an association between the sponsor and the sports team.

Furthermore, no alcohol beverage advert may depict sportsmen or ex-sportsmen in the act of drinking. This restriction also applies to celebrities (including popular sports, music, or cinema personalities), and the use of celebrities that are under the legal drinking age is not permitted.

In the area of digital marketing, the new Code makes it compulsory to implement either an age verification mechanism, alternatively a registration process (including age verification) on websites. Brand owners’ websites and social media platforms must also include responsible messaging on all content material and posts (with the exception of retweeted posts), which should be displayed permanently on-screen.

Turning to the enforcement of the new Code, it provides that the Aware.org’s Marketing Sub-Committee, which will be chaired by a representative of the Advertising Regulatory Board (ARB), will be responsible for the monitoring and ensuring compliance of the Code.

The new Code also sets out possible sanctions for contravention of the Code, which include adverse publicity for offenders, the imposition of compulsory pre-clearance of future adverts, pressure on media companies not to act for offenders, and termination of membership with Aware.org. More severe sanctions listed include punitive fines, a three-month advertising suspension imposed by the Director-General of the Department of Trade and Industry (DTI), and recommendations to the DTI to suspend the liquor licence of repeat offenders.

The CEO of the ARB, Ms. Gail Schimmmel, has advised that the ARB is in the process of updating its Code of Advertising Practice to include the new Code and that Aware.org and the ARB will have “dual” authority to consider complaints lodged based on contraventions of the new Code. It appears that both consumers and competitors would, therefore, be able to lodge complaints relating to alcohol beverage adverts of Aware.org members with Aware.org or the ARB (once the Code of Advertising Practice includes the new Code). Only time will tell how this will work in practice.

At the launch of the new Code in Johannesburg, the CEO of Aware.org, Ms. Ingrid Louw, described the new Code as a “living document”, as it will be reviewed and updated from time to time when necessary, in order to reflect changing circumstances in the industry, society, or otherwise. Aware.org members have been encouraged to implement internal processes to ensure compliance with the new Code. With the buy-in from the alcohol industry as a whole, responsible marketing and compliance within the area of self-regulation in this industry sector could potentially curb the need for Government to implement stricter advertising regulations in this country.

The new Code can be downloaded from the Aware.org website, https://aware.org.za/code-of-communications/.

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Prepared by Jeanette Visagie | Consultant

Verified by Jenny Pienaar | Partner

JENNY PIENAAR

Partner
Trade Mark Attorney

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JEANETTE VISAGIE

Consultant
Trade Mark Attorney

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