MARKETING experts and business consultants suggest that a relatively costly yet effective way of increasing business is the employment of a marketing and advertising strategy geared towards stirring the interest and the commitment of the target market.

In light of recent announcements regarding the Jamaican telecommunications industry, many persons have reflected on the fact that increased competition in this industry has resulted in extensive marketing and advertising campaigns in the various media especially over the past five years.

Although there may exist specific advertising regulations within the various industries, there are some general guidelines which every business, large or small, should consider having regard to the Registration of Business Names Act, the Advertisements Regulation Act and the Consumer Protection Act.

Although companies may register “trading as” names, the Registration of Business Names Act (RBNA) primarily deals with individuals and partnerships which carry on business in Jamaica in a name other than the surname of the individual or the surnames of the partners. Any such person must be registered pursuant to the RBNA, failing which he contravenes the provisions of the RBNA and if convicted by a Resident Magistrate will be liable to a fine not exceeding $15,000 and in default of payment of the fine, to imprisonment for a term not exceeding three months.

Any person who has failed to register his business in accordance with the RBNA is prohibited from issuing any advertisement in relation to the business. It must be noted that for the purposes of the RBNA, advertising includes a wide variety of activities, namely “any form of communication” put out by the individual to notify the public of the business of that person or the products of the business. Based on the definition it appears therefore that, forms of communication prohibited for unregistered business would include business cards, newspaper advertisements, verbal notices via loud speakers and printed signs.

Any person with an unregistered business who advertises in respect of the said business, may be liable to a fine up to $20,000 and in default of payment of such fine, to imprisonment for a term not exceeding three months.

Subject to the foregoing and any other enactment to the contrary, the Advertisement Regulation Act (ARA) provides that a person may exhibit in or upon his own premises, or in or upon any premises in his occupation, advertisements relating to the business, profession or trade carried on upon those premises. He may also exhibit any advertisements upon any building used by him for business purposes provided that the advertisements are not suspended across any roadway or in any way suspended or projected outwards from the business premises.

With respect to advertisements to be erected in a public place, the general rule is that no advertisement is to be exhibited upon any wall, tree, pole, fence, gate or other place so as to be visible from any public place without the approval of the relevant parish council. Several areas are exempt from the regulations made under the ARA so it is prudent to consult with the relevant authority prior to erecting advertisements to ascertain whether approval is indeed necessary.

The relevant authority may refuse to authorise the exhibition of an advertisement if the advertisement will negatively affect the amenities of any public park or public attraction or disfigure the view of rural scenery from any highway or railroad or from any public place or water.

The law also provides that advertisements are not to be placed in such a way so as to obstruct the clear view of traffic on any road and that all advertisements are to be placed or affixed in a secure, neat and orderly manner.

Advertisements erected contrary to the ARA may be removed by the relevant parish council after giving notice to the owner of the advertisement, if same is ascertainable. The owner of the advertisement may also be liable, on conviction before a Resident Magistrate, to a fine of $20.00 and to a further fine of $4.00 for every day during which the offence is continued after his conviction.

With respect to the contents of advertisements, the Consumer Protection Act (CPA) provides that no person shall, in the course of trade or business, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

The CPA specifically prohibits deception or misrepresentation with respect to any aspect of the goods or services being provided, including:

(a) the kind, standard, quality, grade, quantity, composition, style, or model of the goods;

(b) the condition of the goods (whether new, repossessed or reconditioned);

(c) whether the goods or services have any sponsorship, approval, endorsement, performance characteristics, accessories, uses or benefits;

(d) the price of any goods or services; or

(e) the place of origin of goods.

Any breach of the provisions of the CPA as outlined above constitutes an offence and on conviction, the offender may be liable to a fine not exceeding $1,000,000.00 or imprisonment for a term not exceeding one year or to both such fine and imprisonment.

In addition, the CPA generally prohibits the advertising for the supply at a specified price, goods or services which the advertiser does not intend to offer for supply or does not have reasonable grounds for believing can be supplied by him at the advertised price. Any person who has advertised goods or services at a specified price is required by the CPA to offer such goods or services at that price for a reasonable period and in reasonable quantities having regard to the nature of the market in which he carries on business and the nature of the advertisement. Failing this, he will be liable on conviction to a fine not exceeding $100,000.00 or imprisonment for a term not exceeding thirty days.

It is prudent therefore for business to consult an attorney-at-law who will be able to advise whether they are eligible to advertise, assist with the drafting of advertisements and related contracts and providing guidance with respect to the application processes where required so that they may avoid possible litigation and sanctions for breach. Consumers may also contact their attorneys if they are of the view that their rights under the Consumer Protection Act have been violated.

Shuana-Kaye A Hanson is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. Shuana-Kaye may be contacted via shanson@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.