Colgate-Palmolive SA has hit out at smaller rival, Bliss Brands, accusing it of deploying a Stalingrad legal strategy to continue profiting from packaging similar to that of its soap brand Protex, despite the Advertising Regulatory Board having ruled that it should stop doing so.
In a case that is likely to determine the jurisdiction that the Advertising Regulatory Board has over nonmembers, Bliss Brands asked the Constitutional Court to set aside the finding of the Supreme Court of Appeal that the advertising board serves a vital public purpose by maintaining ethical standards in the advertising industry.
The tit-for-tat between Colgate and Bliss has continued for four years. The dispute arose in 2019, when Colgate lodged the initial complaint with the Advertising Regulatory Board against Bliss’s Securex soap packaging, contending that it breached the advertising code in two respects: it exploited the advertising goodwill of Colgate’s Protex and it imitated Protex’s packaging.
The directorate of the regulator, responsible for adjudicating complaints in the first instance, found that Bliss had not breached the code in the packaging of its Securex soap.
Colgate then appealed to the advertising appeals committee, which overturned the directorate’s decision. Bliss Brands then lodged an appeal to the final appeal committee, which found in favour of Colgate in a split decision.
The final ruling required Bliss Brands to cease distribution of the offending Securex packaging.
Bliss then took the decision on judicial review. Judge Denise Fisher of the South Gauteng High Court ruled in favour of Bliss Brands. Fisher questioned the constitutionality of the Advertising Regulatory Authority’s powers, and held that the entity’s memorandum of incorporation is unconstitutional and invalid as it allows the watchdog to adjudicate complaints concerning the advertisements of nonmembers.
Colgate then appealed successfully to the Supreme Court of Appeal, which ruled that the Advertising Regulatory Board is entitled to consider and make decisions on the advertising of nonmembers, and guide its members accordingly.
The latest appeal by Bliss Brands will be argued before the apex court on March 1 2023.
Bliss Brands, which also owns MAQ washing powder and its related products, says in its heads of argument before the apex court that the advertising watchdog has no authority to take action against it as it is not a member of the body.
Liezel Bygate, marketing director at Bliss Brands, said the watchdog’s sanctions that interfere with a nonmember’s advertising is an infringement of rights to freedom of expression.
“A complainant to the Advertising Regulatory Board can thus interfere with an entity’s trade without establishing a cause of action, based on the common law or statute, justifying such interference,” Bygate said in written submissions.
“Such consequence is even more egregious where the complainant is a funder of the Advertising Regulatory Board and is a competitor of the advertiser, the market leader, and uses the mechanisms of the Advertising Regulatory Authority to interfere with the advertiser, a relative minnow ... and to stifle its trade, by interfering with its ability to advertise its goods and, where the complaint relates to packaging, by interfering with its ability to sell its goods.”
Priyan Pillay, regional legal director for Colgate, hit back in his replying affidavit, saying Bliss’s constitutional challenges are opportunistic and self-serving.
“Bliss has launched this application to keep alive the interim interdict granted by the high court, which allows it to continue using soap packaging that is in breach of the code pending the final determination of the constitutional challenge,” said Pillay.
“Bliss has made a commercial calculation that this application will buy it more time, even though its application lacks any prospects.”
The Advertising Regulatory Authority warned the country’s highest court that should it rule in favour of Bliss that would render the regulator toothless.
“Bliss Brands does not have a right to publish whatever it wants, wherever it wants. On the contrary, the Advertising Regulatory Board’s members are entitled to refuse to publish advertising as part of their right to freedom of expression, and to refuse to associate, as part of their right to freedom of association,” the regulator said in its court papers.
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