Mail order advertising
Direct Marketing Association
The Direct Marketing Association of South Africa is an independent body set up and paid for by companies in the direct marketing industry to ensure that its system of self-regulation works in the public interest.
Responsibility for observing the Code rests primarily with the individual companies who sign an acknowledgment of compliance when joining the Association.
While the interpretation of the Code is vested in the Association's Legal and Trade Practices Committee, the performance of this task is supervised by the Board of Directors. The Associations maintains close contact with government departments, consumer organisations and trade associations, and deals with complaints received through them or direct from the public.
Consumers who feel that they have grounds for complaint under the terms of this code against a direct marketing company, whether or not a member of the Direct Marketing Association, should write in the first instance to the firm concerned quoting all relevant details.
If attempts to reach a satisfactory conclusion fail, the consumer has the right to refer his complaint in writing to the Association.
Complaints from members of the public that the Code has been breached should be addressed to the Association. All that is necessary is a letter indicating the basis of complaint. It is helpful if complainants can, wherever possible, provide copies of the transactions and full details of the steps already taken to resolve the complaint. Advice is willingly given by telephone to prospective complainants but investigations will not be undertaken without written confirmation from the complainant.
Complaints should be addressed to:
The Direct Marketing Association of Southern Africa
PO Box 977
All complaints will be dealt with as expeditiously as possible. Delays may, however, occur where it is necessary to obtain further information.
Members will co-operate with the Association in seeking an equitable solution to problems referred to the Association.
The Purpose of the Code
Direct Marketing is a well-established and accepted marketing medium. As such the communication with the potential customers should be factual, honest, decent, informative and should not violate any of the laws of the country.
The main purpose of the Code is twofold. For those in direct marketing it lays down criteria for professional conduct. And for the public it gives a clear indication of the self-imposed limitations accepted by those using or working in direct marketing. Its rules form the basis for arbitration where there is a conflict of interest within the business, or between companies and the general public.
1. Definition of mail order advertisement
1.1 For the purpose of this part of the Code, the phrase mail order advertisement is to be taken as referring to all advertisements, except as expressly provided below, in which an offer is made, whether directly or by implication, to despatch goods, or have them delivered to the purchaser, upon receipt of an order, without the necessity for the consumer to visit any retail establishment or to examine the goods prior to purchase.
1.2 The rules in the ensuing paragraphs apply to all mail order advertisements including those by any advertiser who also conducts a normal retail business.
2. Conformity to the main Code
2.1 Mail order advertisements should conform to all applicable clauses of the ASA Code of Advertising Practice and in particular to the provisions of this Appendix.
2.2 Special care should be taken by advertisers to ensure that the spirit as well as the letter of the provisions are scrupulously observed.
3. Obligations of mail order advertisers
Advertisements for goods offered by mail order requiring money to sent in advance, must-
3.1.1 Include an offer by the advertiser to refund the full amount paid if the purchaser is dissatisfied with the goods ordered with the exception of correspondence education as covered by the Correspondence Colleges Act 50 of 1965.
3.1.2 Indicate the period within which the goods must be returned. Such period shall not be less than 14 days unless the nature of the goods makes an earlier return imperative. The said period shall be determined from the date of despatch by the consumer.
3.1.3 State prominently and clearly the latest date on which (or period within which) the advertiser undertakes to despatch orders. In no case except as detailed in clause 9.2 shall such period exceed 28 days from receipt of order.
3.1.4 Reflect in the body copy of print advertisements the name and telephone number of the advertiser and a street address at which he can be contracted.
If a newspaper, magazine or postal address is used, the full street address must still be reflected.
Where a coupon appears in the advertisement, the name and any of the addresses may appear in the coupon.
3.1.5 Also state the full company name and full street address at which the advertiser can be contacted in normal business hours, on all instruction material, catalogues and list of goods and/or services for sale.
The requirements of this section of the Code do not prevent an advertiser or seller from also stating in his advertisement another address to which consumers are to send their orders, and in this case the address need not be the full postal address but may be in the form of a Box number or Freepost address.
3.1.6 Make it clear whether the goods may be tried out subject to their remaining undamaged. If no indication is given it will be assumed that a trial by the consumer is permitted.
3.1.7 Television advertising must-
184.108.40.206 clearly state, at the time that the price is given, the costs which are payable in addition to the price;
220.127.116.11 give due prominence to the money-back option; and
18.104.22.168 state the proper name of the seller, indicating when the seller is a corporate entity, and the street address where the advertiser may be reached.
When these requirements are presented in visual form the letter sizes shall be clearly visible and remain on screen long enough to be easily read by the average viewer.
3.2.1 The full name of the company must be prominently displayed at the premises identified in the advertisements, instruction material and / or catalogues.
3.2.2 A representative of the company shall be present at the premises identified in 3.1.4 to 3.1.5 above, during normal business hours to deal with enquiries.
Such representative shall be capable and authorised to deal with enquiries from customers.
Advertisers shall not make deceptive use of pro-forma invoices.
4. Supply of goods
4.1 All goods despatched in response to orders received must conform to both the description given in the offer and to any sample which may have been supplied. Substitutes may only be supplied with the express consent of the person who ordered the goods for which they are replacements.
4.2 Nothing in any advertisement, catalogue, list or other promotional material shall diminish a buyer's rights in law.
4.3 Samples of goods where money is required to be sent in advance should be available for public inspection at the premises referred to in 3.2 during normal business hours. Where bespoke or made-to-measure goods are concerned, or where it is the seller's intention (in which case it must be clearly stated) that manufacture should not be commenced by him unless sufficient public interest is manifested in the articles on offer, models or examples of similar work should be made available in lieu of samples of the articles to be supplied.
4.4 All goods offered by mail order method shall aim to conform to relevant South African standards relating to safety of consumer goods.
4.5 Any advertisement which claims that goods are of value by virtue of the amount of precious metal they contain, is required to give an indication of the weight and fineness of precious metal contained in the goods concerned.
4.6 When a physical characteristic may influence the decision whether to order a product (size, weight or value in some cases) it shall be specifically indicated in the advertisement.
4.7 Claims as to the fitness of goods for a particular purpose should not be made, bearing in mind the need for caution in respect of goods of unusual design or manufacture and those with a wide range of uses. Reference should be made to the manufacturers in cases of doubt.
4.8 "Lucky" charms, mascots or other goods which seek to exploit superstition are unacceptable for offer in mail order advertisements.
4.9 No prescription drugs/medicines may be offered for sale by mail order without emphasizing the requirement for a legitimate prescription. The consumer should be warned that any drug or medicine originating from outside the borders of South Africa may be confiscated by Customs if there is no Medicines Act section 21 permit accompanying it.
5. Supply of services
5.1 Offers of services by Mail Order shall include details of the nature, duration, extent, and cost of the service concerned.
5.2 Where goods are offered which require fixing, installation or assembly, other than by the buyer himself, information shall be given in the advertisement, catalogue or other promotional material as to the nature and extent of the work involved. If the seller is prepared to do the work either himself or arrange it through an agent the approximate cost of such fixing, installation or assembly shall be stated.
5.3 Offers requiring prior payment relating to holidays, travel
facilities or entertainment shall include full information
as to the date, time true nature and cost (including any
supplementary charges). Such offers should comply with the Code of Practice of the Association of South African Travel Agents.
In particular, advertisers are under an obligation not to exploit any lack of knowledge among the general public as to the nature and extent of the market for items of the kind advertised or about the criteria for assessment employed within that market.
6. Advertising collectibles and limited editions
All mail order advertising for collectibles shall conform to the provisions of Section III Clause 7 of the Code.
7. Special offers
7.1 Offers which require a person to return a notice that he does not wish to receive further goods or services shall not be made except when the conditions are made clear in an initial offer which is accepted by the purchaser by way of a confirmed order.
7.2 Goods and/or services shall not be despatched or provided to a potential buyer unless an order has been received or the consignment is clearly shown to be "free" and the recipient expressly informed of his unqualified right to treat it as an un- conditional gift.
The word "free" may also be used for conditional offers which require the recipient to buy other goods or services provided all terms and conditions of the offer are conspicuously stated in conjunction with the word "free" and provided that the price of the main goods is not inflated or their quality reduced to provide for the cost of the free goods. (See also Section II Clause 4.4).
8.1 Competitions will not be used as a marketing incentive unless:
8.1.1 All prizes are available and awarded as described.
8.1.2 The judging takes place promptly and fairly and is certified by an independent auditor.
8.1.3 The rules governing any contest are clearly stated at the point of entry.
8.1.4 A full list of winners (excluding winners of consolation prizes) must be produced - certified by an independent auditor - and made available to competitors who wish to receive them.
8.2 Apart from the supply of goods ordered by competition entrants, no distinction should be made in handling and processing responses unless the advertiser has clearly indicated any distinction he intends to make.
8.3 No person or relative connected with the competition promotion, operation or administration of a prize draw shall be eligible to receive a prize in it.
9. Fulfillment of orders
9.1 All mail order advertisements should prominently and clearly state the latest date on which (or period within which) the advertiser undertakes to despatch orders. In no case, except as detailed in 9.2 below shall such period exceed 28 days from receipt of order.
9.2 Provided that the advertisement clearly states the latest date on which despatch will be effected, despatch may be extended beyond the 28 day period in the following cases:
9.2.1 Where a substantial sum of money is required in one advance payment and the advertiser is required to provide security for that part of the purchaser's money which remains unsatisfied by the provision of goods. The outstanding money shall become due to the seller at intervals as he fulfills his contract with the buyer.
9.2.2 Where the advertiser is offering goods in the following categories:
§ bespoke and made-to-measure goods;
§ goods, the manufacture of which is not to be commenced unless sufficient response is forthcoming, in which case the advertiser's proposal should be clearly expressed in his advertisement.
Where bespoke and made-to-measure goods and goods subject to special manufacture are concerned, media may require to see examples of similar work, or models in lieu of samples of the articles to be supplied.
9.2.3 When the advertisement makes it clear that a series of items is to be despatched in sequence and states the intervals between consignments. In such cases only the first delivery needs be made within the 28 day period.
22.214.171.124 Changing the despatch programme is not acceptable except where:
· The advertiser of a series of goods intends to supply more than one item at one time and states this as a term of his offer; or
· The advertiser does not know whether he will be able to supply more than one item of a series at one time and prominently states as a term of his offer that he will if he is able to do so. The advertiser may, nevertheless, not effect such supply unless he gives the buyer adequate advance notice of such quantity supply, together with a facility for the buyer to reject it; or
· the advertiser, not having intended to supply more than one item at one time and having therefore made no reference to it in his initial offer, finds himself able to do so and clearly invites the recipient to accept or reject this facility. This procedure is subject to the condition that such quantity supply may not be proceeded with unless it is positively accepted by the recipient.
126.96.36.199 Any commitment by the buyer to receive a continuing series of goods or services shall be subject to the following conditions:
· The option to cancel this continuing service shall be available to both parties at all times (subject of course to the discharge of any initial or outstanding commitment).
· The supplier shall refund any payment received after the time of cancellation, for which goods or services have not been provided.
9.3 If it becomes clear that an order cannot be despatched within the period stated in the advertisement, the advertiser should:
9.3.1 Immediately offer the consumer a refund. If the consumer nevertheless elects to wait, he should either be given a firm date for despatch or the progress of his order should be reported to him.
9.3.2 Irrespective of the above, if the advertiser does not supply goods ordered on a cash-with-order basis within 45 days of date of receipt order, then the advertiser shall refund all payments in full within 7 days of the forty-fifth day.
10. Return of goods and refunds
10.1 The advertisement should make it clear whether the goods may be tried out subject to their remaining undamaged. If no indication is given it will be assumed that a trial by the consumer is permitted.
Particular care should be taken to express clearly the terms upon which goods sold for self-assembly are offered.
10.2 The date of posting or the date of handing over to the carrier will be taken as the date on which the goods are returned to the advertiser.
10.3 There is no requirement that an advertiser should accept responsibility for goods returned by a consumer, but which have not been received, unless the consumer can produce proof of posting or of receipt by a carrier, in which case the advertiser should accept that proof as a sufficient basis for a refund.
10.4 Except where the publisher stipulates otherwise the advertiser is not expected to pay the cost of return postage (or carriage) from the consumer to himself, unless the goods supplied do not conform to the description or are damaged on receipt or he otherwise fails to satisfy his contractual obligations.
10.5 Damaged goods returned by the consumer should be exchanged or monies refunded within 28 days.
The advertiser shall refund all money paid for goods and their despatch to the consumer immediately upon receipt of the goods being returned when a request is received for reimbursement in the following circumstances:
11.1 Where goods are returned undamaged within 14 days of receipt, or within such longer period which may be specified in the advertisement.
11.2 Where the consumer has expressed the wish to be re-imbursed in terms of 9.3.1 above.
11.3 Where the consumer has fulfilled the terms of a money-back guarantee and requests a refund in terms of the guarantee.
11.4 Where, for whatever reason, the product received by the consumer does not conform to the description of it in advertisements, provided that the product is returned within 14 days.
11.5 Where the advertiser is in breach of his contractual obligations.
11.6 Credit Notes or Vouchers should not be supplied in lieu of cash refunds unless particularly requested by the consumer.
12. Mailing lists
12.1 Advertisers will, on request, make every effort to remove from their own lists those who ask for their name to be deleted or, in the case of clients who may be mailed periodically by the data user, statements of accounts, bonuses, dividends etc. the data users should make provisions to identify on their lists as to exclude non-essential mailings.
12.2 Advertisers will also, if possible, exclude such names on request from any public lists which they may have access to or use for mailings.
13. Lists and Data
14.1 General Principles
Advertisers must remember that the lists and databases may contain data of a personal nature and such data must not be abused. The following criteria must be adhered to:
13.1.1 Personal data may be used only if the list owner and advertiser make offers that apply directly to the personal information available and that may not be construed as an abuse of privileged information.
13.1.2 Advertisers will be obliged to make available information of a personal nature that may be contained in the database according to clause 14.3.3.
13.1.3 Personal data in respect of which services are provided by either the list owner or a computer bureau managing such lists, shall not be disclosed without the prior authority of the list owner or company for whom those services are provided. Such authority must always be recorded in a contractual format.
13.1.4 Care must be taken to ensure that promotions are directed at those individuals who are most likely to have use for the products or services offered.
13.2 Media Preference Service and "Do-not-contact" lists
13.2.1 Advertisers shall subscribe to the Association's Media Preference Service (Mail, Telephone and Fax Preference services), and make every reasonable attempt to remove from lists or provided by them all subscribers to the Service.
13.2.2 Where individuals have requested that their names be removed from an advertiser's own list for marketing purposes, the members shall maintain an in-house suppression file or "do-not-contact list", and make every reasonable attempt to remove from lists used or provided by them all subscribers to the file.
13.3 Rights of Data Subjects
Individuals shall be entitled to the following information or services:
13.3.1 To be informed - on request - by any data user whether the data held may include personal data of which that individual is the data subject.
13.3.2 To be supplied - on request - by any data user with a copy of the information constituting any such personal data held by him. Should such information be expressed in terms which are not intelligible to the consumer (e.g. computer language) the information shall be accompanied by an explanation of those terms.
13.3.3 The data user shall not be obliged to supply any information under item 14.3.2 (above) except in response to a request in writing, providing that the inquirers provide sufficient proof of identity that the information required applies to them. For this service, the data users may charge a reasonable fee - at the discretion - for computer or administrative time involved in providing such information.
13.3.4 Providing the aforementioned procedures are followed, the data user will be obliged to supply the requested information within 40 days of receiving the request, unless for administrative reasons the applicant is advised as to the justifiable reason for any delay.
13.3.5 Advertisers shall respect the title vested in the ownership of lists and shall not use such lists for purposes not agreed by their owners.
13.4 Data Protection
13.4.1 Except where it is obvious from the context or where the individuals already know, advertisers collecting personal information from individuals must inform them at the time of collections:
188.8.131.52 who is collecting, and
184.108.40.206 why it is being collected.
13.4.2 If it is intended to disclose that information to others (including to associated companies) the members must inform the individuals of that intention, unless they already know, and give them an opportunity to object before the first disclosure.
13.4.3 Where advertisers collect personal information from public sources, they do not need to comply with 14.4.1 and 14.4.2 above.
13.5.1 Access to personal data or requests for personal data as provided in item 14.3 may be refused if such disclosure will be detrimental to any of the following purposes:
220.127.116.11 The prevention or detection of crime;
18.104.22.168 The apprehension of prosecution of offenders; or
22.214.171.124 The assessment or collection of any tax or duty.