Court rules against Colgate-Palmolive and the Advertising Regulatory Board, in favour of Bliss Brands, declaring that the ARB is unconstitutional as against non-members

You may have seen our article, Advertising Regulatory Board – Friend or Foe, summarizing this case on 17 May 2021, where we indicated that judgement was still awaited.

Judge Denise Fisher handed down her judgement on Friday 21 May 2021, concluding as follows:

1. Thus in sum, from a general perspective the public powers which are assumed by the ARB in relation to the regulation of the advertising of non-members is unconstitutional in that it is not sourced in law.

2. Furthermore the determination of complaints under clauses 8 and 9 of the Code, implicates the protections under Section 34 of the Constitution and falls foul thereof.

3. In all these circumstances I find that the ARB’s MOI and the Code are unconstitutional and that the partaking of Bliss in the proceedings cannot be said to constitute actual consent to the jurisdiction of the ARB.

4. In light of these findings, it is not necessary for me to determine the review. It suffices to say in relation to review grounds generally that the fundamental lack of fairness which attaches to the process of the ARB informs these grounds of review,

and making the following Order:

1. Clause 3.3 of the MOI, which has the effect of granting the ARB jurisdiction over non-members, is declared unconstitutional, void and unenforceable.

2. The clause “in the absence of a submission to its jurisdiction” in the first sentence as well as in the second sentence in its entirety are severed from clause 3.3 of the MOI.

3. It is declared that the ARB has no jurisdiction over a non-member of the ARB, meaning a person or entity who is not a member of the ARB or is not a person or entity who is bound by the Code as a result of its/her/his membership of a member of the ARB.

4. The ARB may not issue rulings against or in relation to a non-member or that non-member’s advertising.

5. The FAC rulings in this matter are unlawful and are set aside.

6. The ARB is directed to pay to Bliss the sums of money lodged by it with the ARB to cover the costs of its appeals to the AAC and the FAC in terms of clauses 9.2 and 12.6, respectively, of the Procedural Guide.

7. The costs of the applicant [Bliss] are to be paid by the respondents jointly and severally, the one paying the others to be absolved, save that the ARB’s liability for costs is confined to the constitutional challenge only and shall include the costs of two counsel only, whereas the liability of the second and third respondents [Colgate] shall include the costs of three counsel.

A copy of the reportable judgement can be found here.