We have written about the Advertising Regulatory Board (ARB) case of L'Oréal South Africa (Pty) Ltd and Nutriwomen (Pty) Ltd before. The latest development in this case is that the Advertising Appeal Committee (AAC) of the ARB has handed down what is referred to as a 'Breach Ruling'. The ruling was handed down by senior counsel Nasreen Rajab-Budlender SC.
Background of the dispute
The dispute began when L'Oréal lodged a complaint against Nutriwomen, alleging that the packaging of Nutriwomen's DERMACARE range substantially copied the packaging and get-up of L'Oréal's CERAVE products. L'Oréal claimed that this imitation exploited the advertising goodwill associated with the CERAVE packaging, leading to consumer confusion and potential loss of advertising value.
* Image credit - taken from judgment
In May 2024, the ARB Directorate upheld L'Oréal's complaint, finding that Nutriwomen's DERMACARE packaging breached Clauses 8 and 9 of the ARB Code of Advertising Practice (ARB Code).
The reasoning was as follows:
- Not coincidental: the similarities were quite clearly 'too extensive to be coincidental';
- Exploitation: the Advertiser had 'exploited' the Complainant's advertising goodwill;
- Imitation: the Advertiser had 'imitated' the Complainant's 'advertising concept'.
Nutriwomen appealed the Directorate's decision, but the AAC dismissed the appeal in October 2024. The AAC reaffirmed the Directorate's findings.
Breach ruling
Despite the ruling, Nutriwomen continued to use the infringing packaging, leading L'Oréal to file a breach complaint in May 2025.
The breach ruling made the following points:
- Jurisdiction: It's been claimed that Nutriwomen, as a member of the Cosmetics, Toiletry and Fragrances Association of SA (CTFA), is subject to the ARB's jurisdiction. Dis-Chem, which is the exclusive retailer of DERMACARE products, is also a CTFA member.
- Participants: The Advertiser (Nutriwomen) maintains that as a non-member it is not bound by the ARB Code. Yet Nutriwomen appealed against a ruling of the ARB – it 'did not participate under protest – it took the initiative'.
- The Advertiser ' fully participated in the ARB's proceedings, providing detailed submissions'.
- Submission: It is clear that the Advertiser 'submitted to the ARB's jurisdiction'.
- Jurisdiction: The ACC made it clear that Nutriwomen, by virtue of its membership of the CTFA, itself an ARB member, was subject to the ARB's jurisdiction at the time of the original ruling. The ruling states: "Despite the Advertiser expressly objecting to the ARB's jurisdiction, the objection is of little value in circumstances where the Advertiser was, at all relevant times, a member of the CTFA. As the CTFA is a member of the ARB, its members are bound by the ARB's jurisdiction. The Advertiser was therefore bound by our jurisdiction at the time that the ruling was issued on 15 October 2024."
- Concern: The ACC expressed concern over an attempt to benefit from ARB membership and then evade the consequences of an adverse ruling by the Advertiser withdrawing from the CTFA. "It is most concerning that an Advertiser would seek to benefit from the rights which flow from ARB association, even if the association is indirect, only to seek to escape any negative repercussions when the bell tolls. ... By adhering to the Code, ARB members accept the range of responsibilities that come with it."
- Sanctions: The ARB handed down sanctions including that the ARB "...will notify Dis-Chem of this ruling and advise that Dis-Chem is bound to it through its membership of the CTFA. Dis-Chem is instructed to remove the infringing packaging from its shelves within a reasonable time, and not more than 3 months after the ARB's notification made in terms of this paragraph".
The ruling, and this case, again shows the effectiveness of the ARB in resolving disputes. An Advertiser may not be a member of the ARB, however, an adverse ruling could severely impact its ability to use offending advertising as retailers selling its products could be bound to ARB rulings by virtue of their membership with the ARB.
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