How the Consumer Protection Act of 2008 affects marketing activities

The Consumer Protection Act 68 of 2008 (“CPA”) has introduced significant restrictions on the way suppliers are permitted to market goods and services to consumers. The CPA is designed to protect consumers from before they enter into a transaction and even if they do not ultimately transact with the supplier.

Given its breadth, the CPA should be very carefully considered.

The CPA contains some very far-reaching provisions which can impact on every aspect of marketing. There is a general prohibition on deceptive and/or misleading representations in any marketing practices. Some marketing practices are prohibited and suppliers may not use them at all. The CPA also restricts marketing practices relating specifically to catalogue marketing and promotional competitions.

The CPA becomes particularly relevant if a supplier’s marketing strategies rely on direct marketing. In this case, suppliers must ensure that their procedures comply with the following, among others:

  • Customers may only be contacted within certain times and not on Sundays or public holidays.
  • Customers must be able to opt out of direct marketing free of charge.
  • All existing customers should provide confirmation that they wish to continue receiving direct marketing from the supplier. This provision means that the direct marketer must prove that he has paid the prescribed fee and registered with the registry and that he has confirmation that he is allowed to contact the consumer. Without the existing customer’s confirmation, it is presumed that the supplier may not contact the customer.

In light of these restrictions, it is important that the supplier conducts an in-depth, detailed analysis of their business and policies. The supplier should assess whether their company, their consumers and their goods or services fall within the general ambit and application of the CPA.

It is essential that suppliers know and understand these provisions. If a supplier’s marketing practices do not comply with the CPA, there is a risk that the transaction may not be enforced against the supplier’s consumers.

* Courtesy of de Rebus August 2011 – see pg 51 for the full article

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