Uganda trade minister supports anti-counterfeit law, so long as generics aren't impeded

From IPSNews comes an article, "Uganda Bill Shouldn’t Block Generics, Minister Agrees", by Wambi Michael, to the effect that Gagawala Wambuzi, the country's trade minister is in agreement that his government’s controversial Counterfeit Goods Bill should not restrict the manufacture or import of life-saving generic medicines. The Bill, which proposes criminal penalties for counterfeiting, defines that concept widely as

"the manufacturing, producing, packaging, re-packaging, labelling or making of any goods which are imitated so as to be substantially similar to the protected goods without the authority of the intellectual property (IP) right owner subsisting in the country or elsewhere"

The minister is quoted as adding that Uganda’s interest in such a law is to have its industries protected from counterfeiters whom he said are targeting all Ugandan products.

Digesting Zim's Indigenisation Policy

Zimbabwe, once the bread basket of Africa, has been treated with trepidation when it comes to investment due to reasons that have been well documented over the last decade. There is evidence though that some investors are now seeing the country as an exceptional investment opportunity but is this new gained status ephemeral? Recent news reports about the Indigenous and Economic Empowerment Act & Regulations are likely to force the optimists to reconsider, or adopt a licensing model to achieve their objective.

Indigenous and Economic Empowerment Act and Regulations - background and some uncertainty

News of Zimbabwe's legislation that all foreign owned companies (with an asset value over a stipulated threshold) are required to show how they intend to sell at least 51% of their companies to indigenous Zimbabweans (see here and here) has had at least two immediate effects: it has chased off potential investors (as reported, for example here) and it has caused those with current direct investments to scratch their heads and review business plans to meet government objectives (see report here). Despite the regulations and the confusion described in the various reports, not all foreign investors have run away - Angloplat, for example, has publicly backed indigenisation policies (see AllAfrica here) citing its experiences with the Black Economic Empowerment legislation in South Africa as comforting, although cynics will be quick to point out that Angloplat had already invested in $300 million in their Zimbabwe venture.

Will there be a shift in focus to licensing?

Most likely, yes. Reading though the Indigenous and Economic Empowerment Act and Regulations, 2010 published here (possibly suspended see here) and here, it is noteworthy that there is no mention of intellectual property. The legislation, which will be enforced under the eye of Saviour Kasukuwere pictured alongside, focuses on company control and ownership transformation. This should mean that if IP is owned by a foreign company its ownership is not affected. The result is that (assuming no new legislation is passed changing the position and notwithstanding clever structures from corporate lawyers) foreign IP and the terms of its licence into the Zimbabwe now become a very important consideration to the foreign investor who needs to use his position effectively, in the absence of board control.

Take for example a brand business - there is likely to be a greater emphasis by the foreign IP owner on terms and conditions governing the use of the brand (such as quality control, minimum sales and revenue targets, exclusivity, auditing etc) to ensure that his return on investment is maximised and to minimise possible damage to the brand, in the absence of control at board level. Furthermore there will be greater attention paid to the ownership of foreground IP (IP developed during a licence by the licensee) so that, from a foreign owner's point of view, his IP does not become a launch pad to progress at local level which may in future make the foreign owner redundant if that IP is owned locally. Investors will need to carefully consider not only local IP and contractual laws but also speed and reliability, if there is ever a need to enforce them. The recordal of licenses at the local registry could also protect the foreign IP owner from any future claims that IP is owned by the national company.

The new laws, which will be sector specific, are also likely to increase the need for trade mark and patent filings by investors because those filings function as title deeds to their property and therefore are a critical comfort. There is likely to be a need for foreign brand owners to file defensively in Zimbabwe because locals may see these new laws as an opportunity to squat or use reputable foreign brands without consent, as happened to Mcdonalds and a host of others, when sanctions were applied against South Africa in the 80s. Furthermore, because a change of control caused by the indigenisation policy may lead to termination of existing licences (as this type of provision frequently ends up in termination clauses) current licenses may well need to be reviewed as part of any indigenisation plan. This review is likely to lead to re-negotiations of existing licences for the reasons given above.

Other IP considerations

It is worth also mentioning that:

- the definition of a "controlling interest" in relation to a business other than a company under the Act "means any interest which enable the holder thereof to exercise, directly or indirectly, any control whatsoever over the activities or assets of the business". An IP licence arguably enables the licensor to have an element of control over activities of a licensee business eg through quality control which may raise concerns for foreign rights holders in this position; and

- one of the objectives (2(f)) of the National Indigenous and Economic Empowerment Charter attached as a schedule to the Act is to promote technology transfer and in the current Regulations one of the mitigating factors which could relax/delay the implementation of the Regulations is the extent to which it can be shown that new technology is transferred to Zimbabwe "by the business in question".

mPedigree's solution to fake drugs

"It's a great tragedy when you take medicine you have one in three chance of taking something that can actually kill you." mPedigree's solution

West African IP Initiative

In February 2009 the U.S. Department of Commerce and Ghana hosted IP enforcement officials from the ECOWAS region to determine ways to better protect IP in West Africa. As a result, nearly a dozen Ghanaian agencies have established a National Interagency Task Force on IP Protection. They include the Commercial Court, the Copyright Administration, CEPS, the FDB, the Standards Board, the Police Service, the Prosecution Division, and the Registrar General's Department, as well as the Ministries of Justice, Trade and Industry, and Environment, Science and Technology. Starting on the 28th April at the beachside resort (alongside) of La Palm Hotel (Accra), the Commerce Commercial Law Development Program (CLDP) of the US Department of Commerce will organize the three-day workshop for 60 participants as part of US Agency for International Development's (USAID) African Global Competitiveness Initiative (AGCI). Artists and other industry stakeholders who would benefit from improved IP enforcement will also participate. (Modern Ghana). This workshop follows a similar event in Mali a few days ago.

Don't forget to read the small print

In a recent ruling, the ASA upheld a complaint against cellular telephone service provider Mobile Telephone Networks (Pty) Ltd (“MTN”) for contravening Clause 30 of Section III of the Code of Advertising Practice.

The advertisement in question promotes a new contract deal with copy that reads: “Subscription fee R39 PM x 24” and “including R50 airtime per month incl. VAT 25 x SMS”. The consumer complainant submitted that this advertisement is misleading as she discovered, upon signing the contract, that the quoted R39 monthly subscription fee excludes other mandatory costs which, when included, would add up to a total cost of R80 per month.

While both Clauses 4.2.1 (regarding misleading claims) and 19 (regarding pricing policy) of Section III of the Code are applicable in this complaint, the Directorate chose to rely solely on Clause 30 of Section III of the Code, which states that contracts for post-paid cellular telephone services are to state prominently the minimum total monthly cost at which that contract may be entered into. As this advertisement did not prominently state this minimum cost, it fell foul of the Code and the advertiser was ordered to withdraw the advertisement and not use it again in its current format.

South Africa's new Director General of Health

Malebona Precious Matsoso, a Director in Public Health Innovation and Intellectual Property (PHI) for the World Health Organisation, has returned to South Africa to be appointed the new Director-General of Health. This puts her in charge of RSA's health issues reporting to and advising the Health Ministry. It's a big job. Her stance as far IP and drugs is concerned is hinted at in a paper she delivered at the International Conference for Drug Regulation Authorities:

"In conclusion, there are several interventions that could further improve the selection and quality of drugs. First, for the selection of drugs, the essential drugs list should be regularly updated, and provincial therapeutics committees should be established or strengthened. Updated and locally relevant information on efficacy and safety of antiretroviral drugs should be disseminated. For the quality of drugs, results of quality control tests should be used as the basis of prequalification of suppliers in adjudicating tenders. Law enforcement, particularly within the developing country context, should be strengthened in order to combat counterfeit drugs."

Kenya's Anticounterfeit Law Suspended

In the much awaited decision on the Anti-counterfeit Act of 2008, the High Court of Kenya has suspended implementation of the Act "in as far as it applies to generic medicines." The case was filed by three people living with HIV challenging sections 2, 32 and 34 of the Act as unconstitutional.

Source IPS news

A this point Afro-IP is not sure of the meaning or effect of the "suspension" and doubts whether the ruling actually changes anything with regard to the Act "confusing" generic and counterfeit medicine. Afro-IP would appreciate to get a copy of the ruling for further analysis, and at least to learn how the Court determined that the Act applies to "generic medicine".

Zambia Prepares to Celebrate World IP Day

This coming Monday, 26 April, is World Intellectual Property Day. The folks in Zambia, led by the new Zambian Association of Musicians (ZAM), are busy preparing for the special day.

Beginning this weekend, viewers of Zambia’s television stations will see new public service adverts encouraging the respect of intellectual property. The adverts, produced by ZAM and the Zambian government feature hip hop star and ZAM Publicity Secretary, C.R.I.$.I.$. If the advert becomes available on the net, Afro-Leo will be sure to add a link.

In addition to the ongoing television adverts, there will also be a march on Monday to commemorate World Intellectual Property Day. The march will take participants from the Lusaka Post Office to the Lusaka National Museum. The marching group will include musicians, members of ZAM and members of the Zambia Copyright Society (ZAMCOPS). If you happen to be in Lusaka on Monday, join in; everyone is welcome to walk with the group and help promote awareness of intellectual property rights. The march begins at 9am.

Afro-Leo wishes the organizers of the march a happy and successful World IP Day.

JIPLP: Africa Rising to the Anti-Counterfeiting Challenge

Afro Leo has been browsing through the latest edition of the highly respected Journal of Intellectual Property Law and Pratice edited by Afro-IP's Professor Jeremy Phillips, and has come across an article published by anti-counterfeiting expert and colleague Marius Haman entitled: Africa rising to the anti-counterfeiting challenge which is timely given yesterday's post and commentary. The article which, incidentally, kindly quotes Afro-IP is summarised by JIPLP:

"Legal context and key points: The global trade in counterfeit goods is growing at an alarming rate. Africa is increasingly being targeted as a destination for counterfeit goods. A new trend has been identified by the World Customs Organisation's Counterfeiting and Piracy Unit. It indicates that Africa is being used as a transit route for counterfeit goods, posing an indirect threat to European and American markets. This new trend challenges existing African anti-counterfeiting strategies. Africa's response by way of legal reforms, national and international co-operation is explored in this article.

Practical significance: The disproportionate size of Africa's informal or "parallel economy" (compared to that of Western nations), coupled with its rising economic fortunes, impacts on the counterfeiting problem. By adopting creative business models, IPR owners are finding new ways to combat counterfeiting."

JIPLP can be subscribed to here.

World Cup 2010: fake shirts pour in

At the weekend a Swazi man was arrested at the Oshoek Border gate to South Africa after allegedly being found with 12 000 fake World Cup soccer shirts. The South African police also seized counterfeit South Africa soccer team jerseys and other items. The man was also found with counterfeit Nike sneakers, baseball caps, waist coats, Giorgio Armani trousers, Harry Hill T-shirts, Paul Smith and Hugo Boss trousers. (The Times of Swaziland)

Swaziland is of course landlocked which means that this seizure and arrest is likely to be indicative of a far greater problem coming through the ports. Indeed, the same article states that over 60 000 fake South African national team shirts have been seized in the past 45 days. Afro Leo can believe this - cheap (and likely fake) Bafana Bafana shirts can be bought at traffic lights he passes through on his way to work.

The Bafana Bafana Trade Mark - vulnerable?

Bafana Bafana is the nickname of the South African national side which is likely to make enforcing the trade mark difficult - a problem also faced by the Springbok rugby emblem discussed here. The name Bafana Bafana has to be shown to be a trade mark (ie an indication of trade origin for goods/services) and not just a nickname for the national side for it to be able to sustain a counter attack under the Trade Marks Act that it is not a trade mark. To borrow from both Jacob and Harms - "Does the use of Bafana Bafana denote a chink in the distant cash registers of SAFA?"

Take for example the picture alongside - is this a picture of a man with a flag from or made under the control of the registered owner of the Bafana Bafana trade mark, SAFA? Or is this man just showing his allegiance to his national team or indicating that the flag, is the flag of his national team? In other words is BAFANA BAFANA capable of functioning as a trade mark or is it simply a nickname of the national side, coined, as it was, by the Sowetan in 1992 and made valuable (not by SAFA - not that necessarily matters but is interesting nonetheless) but by the public? SAFA will have trouble enforcing its numerous BAFANA BAFANA trade marks - this case decided in 2002 also reminds us just how much trouble they might have.

Hollard Hopes

A consumer complaint was recently lodged against a Hollard Insurance billboard advertisement. The billboard features the image of a man holding a dog and posing next to a mirror. His shadow reflects the image of a cabaret dancer and is accompanied by the words “We get you”. This is one of a series of advertisements for this insurance company in which various characters are portrayed with their own aspirations or fantasies (including the advertisement accompanying this post).

The complainant submitted that the advertisement is discriminatory and offensive as it stereotypes gay men as being effeminate and aspiring to be drag queens.

In response, Hollard submitted that it had received positive feedback about the advertisement and that no research studies on the campaign had indicated that consumers found it offensive or discriminatory. It submitted that the “We get you” copy shows acceptance, rather than prejudice and that the advertising was tongue-in-cheek and humorous.

In determining whether the advertisement was discriminatory, the Directorate referred to a prior, similar complaint and found that the mere depiction of a characteristic (in this case, homosexuality) cannot in itself be discriminatory as envisaged by the Code of Advertising Practice. It was pointed out that in order for a finding of discrimination to be found, the advertisement would have to exclude people based on their sexual orientation. In this case there was no evidence of any benefits being withheld due to the sexual orientation of the subject and, indeed, an implication of acceptance and understanding is represented by the “We get you” copy.

In its assessment of whether the advertisement is offensive, the Directorate found it pertinent that South African culture does not view homosexuality as disreputable and so there is no reason why the hypothetical reasonable person would view the advertisement as “anything more than a light-hearted depiction of the potential aspirations of the depicted character”. In light of this and the fact that the advertisement is not discriminatory, the Directorate found that the advertisement is not likely to cause the type of offence prohibited by the Code and the complaint was dismissed.

The elusive agenda for IBSA

RSA President Jacob Zuma and six other South African Ministers (including Trade and Industry Minister, Rob Davies) will attend the fourth India, Brazil, South Africa (Ibsa) Summit, in Brazil, on Thursday, during which trilateral memoranda of understanding in the areas of science and technology, solar energy and intellectual property are likely to be signed, according to a statement from the President.

Details of this conference are sketchy and hard to come, especially the bit on IP. The IBSA website (here) is not that helpful although there is a good overview of the organisation (especially the difference between BRIC and IBSA) here. Some suggested topics for the IP agenda then, from Afro Leo:

• IP blogs - Spicy IP, IP Tango and Afro-IP - funding and subscription
• Dealing with the FIFA induced public backlash in Brazil - a comparative approach with South Africa
• Risk Management - Can Brazil host the IPL - are their IP laws up to scratch?
• Bayh Dole replications: How to get publicly funded research legislation through?
• Negotiation tips: the effectiveness of Brazil's threat of sanctions and IPR violations against the US
• The Madrid Protocol - when to come out of the pits - India, Brazil, South Africa
• The Kenyan anti-counterfeit legislation - India rallying support
• IP outsourcing demand and outsourcing outsourced work - when will India's cheap resource run out?
• Search engine optimization - getting IBSA to number one

One a slightly less flippant note, anyone with information relating to IP on the trilateral memoranda, please email it here.

LESI, fake drugs and african ambience

Last evening Afro-Leo had the opportunity to join the LESI conference which is being run on his doorstep, in downtown Sandton (see You Tube clip below). It has a super programme which can be downloaded here. This morning's slot is dedicated to publicly funded research with a comparative approach across the USA, Japan, Australia and its green shoots (and not uncontroversial) development in South Africa, which should be great fun.

Last evening's festivities took us to Moyo, an upmarket African experience, near Zoo lake. Afro Leo was invited to join a table of 4 Russian and 2 Estonian IP attorneys from different firms, who had taken time out from networking to enjoy the five course African fare, face painting, drum rolls and the somewhat curious injection of Italian background music. If the Italian music was a bit of a surprise, the conversation (which was politely, English) covered topics such as where to ski in Europe, Muslim traditions, why Russia has a public holiday for all New Year celebrations and Russia's own problem with fake drugs - the IP attorney next to me travels to Germany for her family's medicines!

Overall, a delightful reminder why it is good to be part of an IP community and why Africa can (and should) host more international IP events. Credit to LESI, Johan Du Preez and his team for organising the event.

Confusion Over Double Headed Arrows

Kulula.com is well known as a low cost airline, often offering significantly discounted airfares. In January this year it advertised a sale on airfares with the copy "Fly to these great destinations between 1 February and 25 June 2010". Destinations advertised as "R299 incl. taxes" are listed as:

Jo'burg (O.R Tambo↔ Durbs
Jo'burg (Lanseria) ↔ Durbs
Cape Town ↔ PE
Durbs↔ PE

A consumer complaint was lodged that the advertisement was misleading in terms of Clause 4.2.1 of Section II of the Code of Advertising Practice. It was submitted that the use of the double arrows gives an impression that the advertised price is the cost of a return airfare and not a one way trip, as intended by Kulula.

Kulula's response was that the offer is clearly for a one way fee and that this meaning could be determined from the wording "fly to these great destinations" and not "fly between" or "fly back and forth between". The double arrow merely indicated that the prices are valid on each route, in either direction.

The Directorate considered whether the hypothetical reasonable person would interpret the double arrows to imply that the prices quoted were for a return trip. It took into account Kulula’s reputation as a low cost airline and pointed out that while R299 for a return trip between the destinations advertised would be exceptional, it would not be impossible. It found that the hypothetical reasonable person would construe the arrow to indicate direction.

It was determined that in isolation, the copy “Fly to these great destinations...” may imply that the price was for a one way trip, but in combination with the double arrows creates confusion. The hypothetical reasonable person could reach either conclusion: that the price quoted was for a one way trip, or a return trip. In light of the ambiguity, the complaint was upheld and Kulula was ordered to withdraw the advertisement and not be used again in its current format.

Photocopying licences come to Uganda

"Body to charge licences for photocopying books" is the title of an email received by Afro Leo from Consent (the Consumer Education Trust, Kampala), referring to an article in New Vision Newspaper last week by Taddeo Bwambale.

The article explains that Ugandans will be paying licences to photocopy published works once a new body, the Uganda Reproduction Rights Organisation, comes into force later this month. This initiative seeks to promote intellectual property rights of copyright holders and to ensure that authors benefit from their works. Content users will be required to pay an additional fee for photocopying literary, artistic and other works protected under the Copyright and Neighbouring Act 2006. This Act provides for the establishment of a collecting society to promote and encourage creativity in the artistic, literary and scientific fields in Uganda. Money which it collects will be distributed to authors, the amount depending on the average number of copies made of each author's works in a year. The article adds:

"Students in universities and other institutions will be most affected by the measure since most lecturers rely on handouts, which are photocopies from published works.

According to the copyright law, reproducing published works without the licence of the copyright holder or their agent is an offence, which attracts a fine of sh2m, a four-year jail term or both".

Uganda Trademark Bill passed

Afro-IP can exclusively report that the Uganda Trademarks Bill, 2008 was passed yesterday by Parliament, after its third reading. This makes the year 2010 monumental in any IP practitioner's life in Uganda!

Details of the new Bill will be posted here soon as we have them. One of the fundamental proposals in this law that will be welcomed by brand owners is the registration of service marks. The Financial Services sector was liberalized in Uganda over 15 years ago. This encouraged banks, insurance companies and other financial service providers to invest in Uganda. Investment in Uganda has also been spurred by Telecommunications and Broadcasting companies keen to reap big in one of Africa's most liberalized markets. Other areas that will benefit are advertising and marketing agencies and hospitality related services such as hotels.

None of these companies has been able to effectively protect their brands as service providers since all classes from 35 to 45 have been closed to applicants. The new law will also provide clear remedies for infringement and protection of non traditional marks such as scent marks. The mechanism of examination of non traditional marks is yet to be clarified on.

Nigerian Trade Mark Journal published

Nigeria: the local Registry has just published a new Trade Mark Journal. Interested parties may object to published marks within a non extendible two month period (expiring on 31 May 2010). Readers may recall that there is a considerable backlog at the Nigerian Registry which released its journals, at best, only annually (see earlier post here, for example).

Tektique to showcase tasty tech transfer prospects

Here, via Intellectual Property Marketing Advisor, comes news of Tektique, a new South African technology portal.

According to the information received, this word is a contraction of the words "technology boutique". The portal is directed specifically at the process of adding tangible value to IP:

"Tektique is a collaboration between South Africa’s leading higher education institutions and research institutions. It was developed with support from the Department of Science and Technology’s National Intellectual Property Management Office in 2009 and was incubated by InnovUS, the technology transfer company of Stellenbosch University. In addition to providing a ‘showcase’ for South African IP, Tektique provides member institutions with a lead generation report, customized for that particular technology, for each posting. This report consists of relevant potential industry partners for each new technology, descriptions of the identified companies, as well as the details for a contact person at each of these companies".

Tektique also has an IP policy. According to its FAQs:

"6. Who owns my IP once it is on Tektique

All IP loaded onto the Tektique website is the property of the institution from which it comes .... Any and all commercialisation that comes from this IP will be the property of that institution. Tektique exists to be the platform that connects the IP owners with potential partners or funders. Tektique takes no shareholding or remuneration for this service".

Afro-IP coverage grows

Afro-IP is delighted to announce that IP and OAPI expert Dr DJOMGA Christian Dudieu based in the Cameroon will join its list of contributors with a periodic column on developments in the OAPI region. Christian's profile will be added to the contributor list very shortly and we eagerly await his first post ... in English or in French!

Analysing alternative methods to fighting fake drugs

Julian Harris at International Policy Network responds to some points in the Now Lebanon article (see previous past here and commentary (thank you Paul and Graham) here) which postulates various alternative methods for fighting fake drugs:

"Firstly, implementing a state-run healthcare system is not a way of reducing levels of counterfeit medicines. The Member of Parliament’s rather bizarre comparison between France and ‘Africa’ would be amusing if it wasn’t so dangerously misleading. One could just as easily look at the situation in the USA, where there is no universal healthcare system (as yet) and extremely low levels of counterfeit medicines.

Environments with high levels of fake drugs are characterised by weak trademark protection, slow or politically-influenced courts, and high corruption. Associating the problem with tangential issues such as a lack of ‘social’ healthcare should not be done without considerable supporting evidence.

Of the solutions presented in the article, the most promising is the (voluntary) adoption by private companies of new technologies. These technologies can preserve the identity of their products, guaranteeing to patients that they’re purchasing the real thing. The growth of such technologies is to be welcomed, especially in areas where protecting IP is extremely difficult.

Holograms, however, are not a particularly advanced technology and have already been faked for use on counterfeit medicines.

Sadly an increase in levels of inspectors is not necessarily a solution. In India, to take one example, there are cases of inspectors taking bribes and even conspiring in the provision of fake drugs to public hospitals. A recently-exposed drug racket in Chennai has partially been blamed on drug inspectors exploiting their positions. In many countries, increasing regulation of this kind simply increases the scope for corruption and illicit counterfeits dealing.

Citations:

Piyush Diwan, 14th December 2008, "Presence of flourishing fake medicine racket in Orissa confirmed by Vigilance reports”,

“Why watchdogs failed to bark”, 27th March 2010"

It seems as if we are back to effective IP (and its enforcement) as a crucial part of the solution. All the more reason to get that Kenyan definition to work but is that what the Kenyan constitutional case is all about? Court papers and/or further comment would be welcome.

For more posts on this complex, intriquing and important debate click here.

Kenyan anti-counterfeit legislation debate

My earlier post concerning the Anti-Counterfeiting Act challenge in Kenya here, has lead a number of useful responses. The first is copied below as the writer wishes to be anonymous:

"The Kenya Anti-Counterfeiting Act says “counterfeiting means taking the following actions without the authority of the owner of intellectual property right subsisting in Kenya or elsewhere in respect of protected goods – (d) in relation to medicine, the deliberate and fraudulent mislabelling of medicine with respect to identity or source, whether or not such products have correct ingredients, wrong ingredients, have sufficient active ingredients or have fake packaging” (my emphasis). Do you interpret this definition of counterfeit medicine as including legitimate generics? [Darren Olivier - no I do not] Again, the definition in the Act is almost identical to the official WHO definition counterfeit medicines.

From my basic understanding of the Act, I believe that the definition is fine, and that the real potential problem is that the Kenyan Revenue Authority (and other inspectors under this Act)will need training and established procedures to be able to quickly and efficiently tell the difference between legitimate drugs (both branded and generic) and counterfeits. Delay in releasing legitimate generic or branded drugs may occur if the KRA is unable to quickly identify legitimates from counterfeits. From what I’ve heard, the Kenyan Government is aware of this need for training and procedures. It seems that the activists – rather than trying to obfuscate the issue by claiming that the Act is “vague” – should be calling for the Govt of Kenya to put in place adequate resources and systems to ensure that their inspectors are able to implement the Act properly."

Further comment would be appreciated. Paul, David?

Belting Up

Throughout the year, but particularly over the Easter holiday period, road accidents are top of the news. Many resultant injuries and fatalities are caused by passengers and drivers not wearing seatbelts and much awareness has been drawn to the importance of wearing a seatbelt by campaigns such as Arrive Alive.

Recently, consumer lodged a complaint to the ASA against an Outsurance Insurance Company (Pty) Ltd television advertisement depicting a family driving in a car in which, he submitted, “one adult and one child are shown not wearing or having discarded their seatbelts while driving”. The complainant found this advertisement to be irresponsible (in contravention of Clause 1.2 of Section I of the Code of Advertising Practice) and depict illegal and unsafe activity (falling foul of Clause 3.3 and 13 of Section II of the Code).

In response, Outsurance pointed out that in the first scene complained of, the child could only be seen from above the shoulder line and it is impossible to conclude that he is not wearing a seatbelt. This scene lasts approximately 2 seconds in the entire 35 second commercial. In the second scene complained of, the adults portrayed are not wearing seatbelts. However, in this scene the car is in a driveway and not on a public road, where it is not illegal not to wear a seatbelt. Furthermore, in the rest of the advertisement, the adults are clearly shown to be wearing seatbelts, so it may be assumed that, having arrived home safely, they removed their seatbelts.
The Directorate considered whether the actions depicted in the advertisement are likely to encourage people to emulate such behaviour. It also considered the advertisement as a whole and not for a fleeting scene where the seatbelts were not visible. It was noted that all other scenes clearly show seatbelts being worn. The Directorate found that neither scene complained of would encourage any hypothetical reasonable person to drive without a seatbelt and would likely be very much aware that seatbelts are of vital importance. Such person would not discard them on the basis of the “fleeting and insignificant scenes” relied upon in the complaint. The complaint was dismissed.