Ruling against ad about danger of fizzy drinks ‘strikes at the heart of public health advocacy’

In October 2024, the Healthy Living Alliance (Heala) launched a campaign calling for the government to strengthen the Health Promotion Levy (the sugary drinks tax).

The radio advert, broadcast in Afrikaans, said: “Fizzy drinks and fruit juice make our children sick. With every sip, sugar is dumped into their bodies, leading to obesity, heart disease and diabetes as they age. We must protect our children from all drinks with sugar in them. Insist on a stricter health promotion levy now. Sign the petition on heala.org.”

A complaint was lodged by an individual after his child heard the advert and was distressed. 

The Advertising Regulatory Board (ARB) found the advertisement to be misleading, according to clause 4.2.1 of section II of the Code of Advertising Practice, which states: “Advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer.”

While Heala is not an ARB member, broadcasters are members, so the advert in its current form is blocked. 

According to the ARB’s website it is “South Africa’s official self-regulation body that adjudicates complaints about the content of advertising”. 

The ARB is an industry-funded body, funded by Coca-Cola, Debonairs, Fishaways, Kellanova, KFC, Mugg&Bean, Nandos, Pepsico, Pick n Pay, Tiger Brands, Steers, Wimpy, Unilever and RCL Foods, among others. 

Looming health crisis 

Diabetes is the leading non-communicable cause of death in South Africa. Drinking even one soda a week is linked to significant increased probability of weight gain and development of non-communicable diseases. 

One in nine people in South Africa has diabetes. Diabetes rates have increased by 36% in the past 20 years and its rise has been called a “looming health crisis” by Statistics South Africa. One in four cases of the disease is linked to drinking sugar-sweetened beverages in South Africa. 

The estimated direct medical cost of treating diabetes in the public sector alone is R35-billion. This does not include personal costs to the patient, the impact on the economy from lost working hours or private treatment. 

Diabetes leads to thousands of annual cases of blindness, amputation, stroke and heart disease.

These are some of the facts Dr Patrick Ngassa Piotie, co-founder of the University of Pretoria Diabetes Research Centre and chairperson of the Diabetes Alliance South Africa, shared in his expert submission to the ARB. 

He did this to assist in evaluating public health messaging on sugar-sweetened beverages, providing the report as an independent public health expert.

Single sip causes disease?  

Heala appealed the ARB ruling, leading them to the Advertising Appeals Committee (AAC) on 23 June 2025. 

The AAC agreed that the advert was misleading because it gave the impression that any sugary drink would automatically make children sick and cause diseases like obesity, heart disease and diabetes.

Daily Maverick sought the opinion of commercial law attorney and director at Stupel & Berman Inc, Nandi Mtonga, who explained that each element of an advert is dissected by the ARB.

“When you look at it in that dissected manner, the first part of it is definitive. It’s absolute; “fizzy drinks and fruit juices make our children sick.” The language [..] There’s no leeway.”

From reading the advert, Mtonga said that a reasonable person might consider themselves unaffected by a single fruit juice. She said that the campaign’s intent was to highlight the compounding effects leading to various diseases, as suggested by the second half of the advert. However, she thinks the second part where they mention “as they age” was not clear enough. Mtonga explained that the ARB’s code doesn’t only assess whether an advert is misleading, but whether it has the potential to be misleading. 

“To clarify: as a public health expert, I do not believe a reasonable person would interpret the advert as suggesting that a single sip of a sugary beverage directly causes diabetes or other NCDs [non-communicable diseases],”

Read more: Ruling against ad about danger of fizzy drinks ‘strikes at the heart of public health advocacy’

“Rather, the advert is highlighting the well-established reality that regular consumption of sugar-sweetened beverages over time substantially increases the risk of obesity, type 2 diabetes, heart disease and other related conditions,” Piotie told Daily Maverick.

“We have long used clear and direct messages in public health, such as ‘smoking kills’. I have yet to meet a reasonable person who believes that this means a single puff or a single cigarette will cause cancer. Rather, people understand that smoking over time leads to disease. The same principle applies here with sugary drinks and NCDs.

“This interpretation is consistent with the scientific evidence I provided in my expert submission. Sugary drinks are unique in that they deliver high amounts of rapidly absorbed sugar, with little nutritional value, and contribute meaningfully to South Africa’s growing NCD crisis. In this context, strong and direct messaging is an appropriate public health tool to raise awareness and support evidence-based policy such as the Health Promotion Levy. 

“The risks I outlined relate to cumulative patterns of consumption, not to a single sip.”  

To weigh or not to weigh 

Heala put forward two expert opinions to argue aspects of their case. It isn’t clear from the written findings if the ARB examined the evidence.  

“I think it would have been vital to weigh the contrasting evidence and not overlook it, particularly when you look at the overall picture of the code and the different sections that it contains,” said Mtonga.

“One of the principles of our law is that the person who alleges must prove. So that shifts the burden to the so-called complainant in this instance to prove the fact that the advert is misleading.”

The question here was not whether the claims were untruthful or not backed by science, but that the ARB was saying the manner of communicating that information lent itself to possible misunderstandings. 

“I think Heala has a very good cause that they want to put forward, but looking at the wording of their advert I think they just missed it a little bit, and it’s not a ban on them advocating their cause, it’s just a call for them to take care in how they deliver that information,” she said. 

“If the allegations were to be made that Heala in its advocacy is making unsupported claims, as a matter of procedural fairness the ARB must engage with the evidence that is put before it,” said advocate Lerato Zikalala, presenting Heala’s case before the final appeal committee on 9 September. She specialises in public and commercial law. 

Policing ideas or protecting consumers? 

Mtonga told Daily Maverick that she initially believed the ruling aligned with the ARB’s code, but said the decision lacked detail on jurisdiction. She said jurisdiction had to be satisfied before dealing with the merits of a case. 

Zikalala said: “The code is intended primarily to protect consumers from harmful commercial practices in advertising commercial goods, rather than to police ideas, or public health messaging with no commercial incentive.”

She said the ARB has to explain and must satisfy itself why it would be appropriate to extend the code to non-commercial speech. 

“As I’ve already said, the advertisement is non-commercial, Heala is a civil society organisation, the matter relates to public policy and controversy, so it falls within the exception. 

“It is intended to promote public thought and public ideas… Applying the code to Heala’s advertisement will, and has had a chilling effect on public organisations such as Heala that do public health messaging.”

Next steps

Now the case rests with the final appeal committee, which heard arguments from Heala’s legal representative on 9 September. 

“This appeal concerns more than just a single advertisement of Heala concerning the Health Promotion Levy. We would say, and we say so without hyperbole, that it strikes at the heart of public health advocacy and freedom of expression,” Zikalala said. 

Using the advertising code in this way imposed a double standard; where Heala’s advocacy was restricted while allowing sugary drinks to be promoted without acknowledging their health risks. 

“Our submission is that this final appeal committee must uphold the appeal and recognise the role that advocacy plays in promoting the public interest, promoting debate and supporting significant public health issues.”

If the appeal is upheld, Heala wins and the advert will be reinstated as lawful advocacy. If it is dismissed, the AAC ruling stands and the advert will not be allowed on air. Both the complainant and Heala may seek a high court review after the decision. 

If they end up at the high court, whatever happens with the review, it won’t be a quick process, Mtonga explained. 

The ARB had not responded to requests for comment by the time of publication. DM