Advertising, Marketing & Promotion Comparative Guide

1 Legal framework

1.1 What are the main legislative and regulatory provisions that govern advertising in your jurisdiction?

There are no specific advertising laws in Zimbabwe. However, advertisers must adhere to general laws relating to:

• intellectual property;
• unfair trade practices and competition;
• food;
• drugs;
• alcohol;
• gambling;
• tobacco;
• pornography;
• the environment;
• health and safety; and
• security.

Furthermore, and more recently, numerous city councils and rural district councils across Zimbabwe have been passing advertising bylaws that require members of the public to be granted permission by the council before putting up ads in public spaces.

However, the advertising industry in Zimbabwe is itself largely self-regulated. Accordingly, the acceptability of advertising content is usually determined by advertisers themselves through their various industry associations, such as:

• the Advertising Media Association (ADMA);
• the Advertising Standards Authority (ASAZIM) (which was created by ADMA);
• the Advertising Standards Association of Zimbabwe;
• the Zimbabwe Advertising Practitioners Association;
• the Communication Industry Association; and
• the Association of Zimbabwe Advertisers.

The bodies set rules to be followed by their members, which are enforced through:

• complaint procedures;
• investigations; and
• adjudication of disputes.

The body responsible for such matters for the adverting industry is ASAZIM, which has published a Code of Standards.

1.2 Which bilateral or multilateral instruments or treaties with effect in your jurisdiction (if any) have particular relevance for advertising in your jurisdiction?

There are no bilateral or multilateral instruments or treaties that affect advertising in Zimbabwe.

1.3 What industry codes or guidelines have relevance for advertising in your jurisdiction?

The basic code is the Code of Standards issued by ASAZIM.

The key principles set out in the code are as follows:

• Advertising:
• • must be "legal, decent, honest and truthful"; and
  • must not contain "material of doubtful propriety or which is obscene, indecent or profane, or contrary in any way to accepted standards of good taste and morality".
• Certain conduct in advertising is prohibited, including:
• • conduct which is false or misleading, and/or which constitutes misrepresentation (regardless of whether such conduct will likely lead to legal action for infringement);
  • malicious or scandalous content;
  • disparaging references to competitive products or services; and
  • any content which may be considered dangerous to children.
• ASAZIM has the power to receive, investigate and make rulings concerning complaints by members and community group.

1.4 Which bodies are responsible for implementing and enforcing the advertising regime in your jurisdiction? What is their general approach in doing so?

The self-regulatory body for the advertising industry in Zimbabwe, the Advertising Standards Authority, became dormant during the early 2000s as result of the economic crisis in Zimbabwe. However, in March 2017, the ASA relaunched and rebranded itself as ASAZIM. As an independent body, ASAZIM works in conjunction with all entities involved in advertising in Zimbabwe, including:

• the Zimbabwe Association of Accredited Practitioners in Advertising;
• the Marketers Association Zimbabwe;
• ADMA; and
• the Consumer Council of Zimbabwe.

The organisation is governed by an executive committee which is made up of representatives from the aforementioned organisations.

The general approach of ASAZIM is to provide prompt, accessible and cost-efficient mechanisms to ensure advertising is "legal, decent, honest and truthful".

2 Authorisation and clearance

2.1 Do advertisers need any kind of licence or authorisation in order to operate in your jurisdiction?

No. However, the government requires pre-approvals for anyone who desires to take pictures of government buildings or offices to use in ads.

2.2 Do ads require any kind of clearance before they can be released in your jurisdiction?

No. Ads released on the Internet or via mass text message, billboards and other such media do not require clearance.

However, ads that appear on the Zimbabwe Broadcasting Corporation – the state-owned local television station – require pre-clearance. Ads that appear on privately owned TV stations do not require pre-clearance.

3 General advertising regime

3.1 What general rules and requirements apply to ads in your jurisdiction?

The advertising industry in Zimbabwe is largely self-regulated. The basic code is the Code of Standards issued by the Advertising Standards Authority (ASAZIM).

3.2 What rules and requirements apply to puffery in your jurisdiction?

There are no specific rules governing claims of puffery made in ads. However, the Code of Standards requires that advertisers stand ready to produce such substantiation if and when called upon to do so.

The Code of Standards states that advertisers failing to substantiate claims can be subject to a fine of ZWD 1,000.

3.3 Under what circumstances must claims in ads be substantiated?

Generally, ASAZIM is prompted to act by a complaint from either its members or community groups requiring an ad to be substantiated. However, if an ad is obviously contrary to the Code of Standards, ASAZIM may act on its own initiative and will not need substantiation in such cases.

3.4 What rules and requirements apply to the use of the following? (a) Test results; (b) Survey results and (c) Testimonials.

All of the above are treated in the same manner. The Code of Standards states:

3.5 What rules and requirements apply to the protection of minors?

The Code of Standards prohibits any advertising content which may be considered as dangerous to children.

3.6 Are certain forms of advertising prohibited in your jurisdiction?

No. All forms of genuine advertising are allowed in Zimbabwe.

4 Misleading advertising

4.1 On what grounds will an ad be found to be misleading in your jurisdiction? How does the process unfold?

Advertising can be found to be misleading if it is untruthful or deceptive. The process starts with the submission of a complaint. Thereafter, the Advertising Standards Authority (ASAZIM) investigates, the parties make representations and a decision is made.

4.2 If an ad is found to be misleading, what are the consequences for the advertiser?

A decision may require specific performance and/or the imposition of a penalty. If the offender fails to pay, ASAZIM members will be advised to stop accepting any advertising copy from that advertiser. Reports of any criminal conduct may be made available to the relevant authorities.

There are no specific timeframes or deadlines for presenting a claim; but generally, claims must be submitted within a reasonable time after knowledge of publication of the offending ad.

4.3 Can the advertiser appeal the decision? If so, what is the process for doing so?

The advertiser can refuse to accept the decision. If the advertiser takes this course of action, an action can be taken up in the Commercial Court at the High Court.

5 Specific advertising regimes

5.1 What rules and requirements apply to the following types of advertising in your jurisdiction, and what best practices should be considered in each case? (a) Comparative advertising; (b) Promotional marketing (eg, competitions, lotteries and sweepstakes); (c) Interest-based advertising (ie, tailored advertising based on data collected from internet browsing); (d) Native advertising; (e) Influencer advertising; (f) Ambush marketing; (g) Country-of-origin marketing; and (h) Green marketing.

(a) Comparative advertising

Comparative advertising in connection with the same advertiser's goods or services is allowed, but comparative advertising with another competitor is prohibited.

In practice, comparative advertising is seldom used in Zimbabwe because of:

• the IP laws and defamation laws; and
• constraints in terms of ethical standards.

(b) Promotional marketing (eg, competitions, lotteries and sweepstakes)

There are no specific rules on promotional marketing in general. However, there are special rules for chance-based games, skill-based contests or other giveaways based on the audience. For example, raffles, lotteries and sweepstakes are not permitted for children under 18 years of age (no form of activity regulated under the Lotteries and Gambling Act is permitted for children).

(c) Interest-based advertising (ie, tailored advertising based on data collected from internet browsing)

Zimbabwe has a Cyber and Data Protection Act which outlines the purposes and permissible use of data collected from internet browsing. Nevertheless, all forms of legitimate internet advertising are allowed.

(d) Native advertising

Native advertising – that is, content from a newspaper or publication which seems reported but is actually paid for by an advertiser and intended to promote the advertiser's product – is permitted as long as it is not misleading. There are no specific rules in this regard.

(e) Influencer advertising

Influencer advertising is permitted. There are no specific rules in this regard.

(f) Ambush marketing

There is no specific law regarding the prevention or prohibition of ambush marketing in Zimbabwe.

(g) Country-of-origin marketing

The laws related to intellectual property, unfair trade practices and competition govern claims of geographic origin. According to the Geographic Indication Act of Zimbabwe (Part III, Section 9), it is prohibited to use misleading geographic indicators. The Competition Act further states that misleading advertising – which includes "containing a statement, warranty or guarantee that any service is or will be of a particular kind, standard, quality or quantity, or that it is supplied by any particular person or by a person of a particular trade, qualification or skill, which statement, warranty or guarantee the publisher knows or ought to know is untrue" – is an offence.

(h) Green marketing

The concept of green marketing – that is, the marketing of products that are presumed to be environmentally safe – is allowed in Zimbabwe. There are no specific regulations governing green marketing, but the Advertising Standards Authority may require substantiation of claims made in ads.

6 Direct marketing

6.1 What rules and requirements apply to the following types of direct marketing in your jurisdiction, and what best practices should be considered in each case? (a) Telemarketing; (b) Email marketing; (c) Direct mailings; and (d) Opt-out marketing.

There are no specific regulations governing direct marketing. All of the above forms of marketing are permissible as long as the advertised content itself is legal and truthful.

7 Indirect marketing

7.1 What rules and requirements apply to the following types of marketing in your jurisdiction, and what best practices should be considered in each case? (a) Product placement; (b) Sponsorship; and (c) Loyalty programmes.

There are no specific regulations governing indirect marketing. All of the above forms of marketing are permissible and are widely used in Zimbabwe in many industries.

8 Industry-specific regimes

8.1 What regulatory regimes apply to advertising in the following industries in your jurisdiction, and what best practices would you highlight? (a) Gambling (including lotteries); (b) Alcohol; (c) Tobacco; (d) E-cigarettes; (e) Pharmaceuticals (prescription and over-the-counter); (f) Therapeutic products (ie, products which claim to have health benefits but which are not medicines or pharmaceuticals, such as vitamin supplements); (g) Food; and (h) Financial products and services.

There are several industries in which advertising practices are regulated. Some of the best practices in each are outlined below.

(a) Gambling (including lotteries)

There are special rules for chance-based games, skill-based contests and other giveaways based on the audience. For example, raffles, lotteries and sweepstakes are not permitted for children under 18 years of age (no form of activity regulated under the Lotteries and Gambling Act is permitted for children).

(b) Alcohol

Alcohol products must include an indication of the alcohol percentage and ads must not target children under 18 years of age.

(c) Tobacco

Tobacco products must include health warnings on their packaging.

(d) E-cigarettes

As in the case of tobacco products, health warnings must be included on packaging.

(e) Pharmaceuticals (prescription and over-the-counter)

Pharmaceutical products must include health warnings on their packaging. The Drugs Control Council of Zimbabwe can intervene if medicinal claims are made for products which are not licensed medicines.

(f) Therapeutic products (ie, products which claim to have health benefits but which are not medicines or pharmaceuticals, such as vitamin supplements)

Similar to pharmaceutical products, therapeutic products must include health warnings on their packaging. The Drugs Control Council of Zimbabwe can intervene if medicinal claims are made for products which are not licensed medicines.

(g) Food

Food ads and packaging must comply with specific labelling requirements, such as:

• a ‘best before' date;
• the date of manufacturing;
• the fat content;
• any preservatives;
• any fish content;
• any poultry content; and
• the mixture of cheeses.

(h) Financial products and services

Financial products and services must comply with regulations in the financial services industry.

9 Enforcement

9.1 On what grounds can the following parties take action against ads in your jurisdiction? (a) Competitors; (b) Consumer associations; and (c) Members of the public.

(a) Competitors

Complaints by competitors are made to the Advertising Standards Authority (ASAZIM).

The Code of Standards sets out rules to which all competitors should adhere. By agreement of its members, ASAZIM may arbitrate disputes between competitors and render decisions which are final.

ASAZIM cannot award damages or injunctive relief. However, ASAZIM can:

• impose a fine;
• expel a member;
• order an advertiser to cease and desist; and
• require corrections with or without an apology.

Claims may also be presented to the High Court for:

• injunctive relief (interdict);
• specific performance (eg, corrective advertising); and/or
• damages.

Such claims may be based on:

• unfair business practices;
• trademark and copyright infringement;
• other relevant laws; and
• the common law.

Competitors may:

• report a violation or criminal offence to the police; and
• seek police assistance in seizing offending goods.

A competitor may also request the state to proceed with criminal prosecution, which may result in a fine and, for some offences, imprisonment. There is no cost award in criminal cases, but there can be in civil matters; and the court has discretion to award on a higher scale of attorney/client.

(b) Consumer associations

Consumer associations:

• protect consumers' right to fair and honest dealing; and
• safeguard them against unconscionable conduct.

Consumer associations can issue complaints similar to those that can be made by competitors.

(c) Members of the public

Consumers have rights which include, but are not limited to, those set out in the Consumer Contract Act and the Competition Act. These acts prohibit unfair trade practices. If these unfair trade practices occur as a result of advertising, an aggrieved consumer may make a complaint to ASAZIM, which may take action under its Code of Standards. This may involve:

• conducting investigations;
• negotiating with the consumer and the advertiser; and
• holding a hearing, which may or may not result in a fine or other appropriate action.

However, ASAZIM does not have the power to make an order for:

• specific performance;
• injunctive relief;
• damages; or
• restitution.

Restitution can only be pursued by a consumer in a court of law.

9.2 What mechanisms are available to them to do so, and what are the pros and cons of each?

The mechanism depends on whether the matter is before ASAZIM or the courts. The pros and cons are outlined in question 9.1.

9.3 How does the procedure typically unfold and how long does it take?

When a matter comes before ASAZIM, it typically involves the following steps:

• submission of a complaint;
• investigation by ASAZIM;
• representations by the parties; and
• a final decision.

A decision takes approximately two years.

When a matter comes before the courts, it typically involves the following steps:

• The aggrieved party files an application;
• There is a hearing; and
• A decision is made.

It takes approximately two years to obtain a decision.

9.4 What costs are incurred?

The costs vary depending on whether:

• legal counsel are engaged; and
• the matter comes before ASAZIM or the courts.

9.5 What defences are typically raised by the advertiser?

That the ad was lawful.

9.6 What remedies are available?

See above for each party.

9.7 Can the decision be appealed? If so, what is the process for doing so?

The advertiser can refuse to accept the decision. If the advertiser takes this course of action, an action can be brought before the Commercial Court at the High Court.

10 Trends and predictions

10.1 How would you describe the current advertising landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The advertising landscape is constantly evolving and it is important to consult up-to-date sources. In general, the advertising landscape in Zimbabwe – as in many other countries – has been transformed by the digital transformation and technological advancements. Digital advertising has been growing in importance due to increased internet penetration and smartphone usage. Platforms such as social media, search engines and websites play a significant role in reaching target audiences. In response, the Cyber and Data Protection Act issued in 2022.

In terms of prevailing trends, personalised and targeted advertising has gained prominence. Advertisers are leveraging data analytics and user insights to deliver tailored messages to specific demographics or individuals. Influencer marketing has also become popular, with brands collaborating with social media influencers to promote their products or services.

Regarding legislative reforms, it is crucial to refer to recent news and consult the relevant authorities or industry associations to obtain the most accurate and up-to-date information. Legislative changes in advertising can be influenced by factors such as:

• consumer protection;
• privacy concerns; and
• industry regulations.

These reforms aim to:

• ensure ethical advertising practices;
• protect consumer rights; and
• maintain fair competition in the market.

11 Tips and traps

11.1 What are your top tips for companies that advertise their products and services in your jurisdiction and what potential sticking points would you highlight?

Advertisers must understand social, economic and political conditions, as well as cultural nuances, as many restrictions are not stated in the Code of Standards or laws, but may nevertheless need to be followed.

As Zimbabwe is a developing country, there are sensitivities with respect to political criticism or affiliation, which would not be an issue in a developed country. For example, one advertising firm refused to provide a bulletin board ad which included the words ‘BANANA REPUBLIC' during election year without additional information and representations showing clearly that the words were related to the well-known trademark for clothing stores, due to concerns that it might be mistakenly thought to be criticism of the government.

Positive relationships with other members of the advertising industry and with government are important to succeed in Zimbabwe.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.