False and Misleading Claims: What a Supplier May Not Say About Goods

Marketing has always run on enthusiasm, and consumers expect a certain amount of it. The assumption that follows — that anything short of a flat lie is fair game — is where section 41 of the Consumer Protection Act 68 of 2008 disagrees.

The prohibition, and how wide it is

Section 41 prohibits a supplier from directly or indirectly expressing or implying

"a false, misleading or deceptive representation concerning a material fact to a consumer"

by words or by conduct.

Then it goes further, and the extension is the part worth knowing. A supplier must not

use "exaggeration, innuendo or ambiguity as to a material fact, or fail to disclose a material fact if that failure amounts to a deception"

and must not fail to correct a consumer's apparent misapprehension where leaving it uncorrected amounts to a false representation.

Take those in turn, because each disposes of a common defence.

"Indirectly … or by conduct." You do not have to say the false thing. Arranging the display, the demonstration or the paperwork so that a consumer draws the false conclusion is within the section.

"Exaggeration, innuendo or ambiguity." The three standard tools of marketing copy, named in a prohibition. The qualifier is that they must be as to a material fact — a fact that matters to the decision. Calling a sofa "beautiful" is opinion. Implying it is leather when it is not is a material fact.

"Fail to disclose a material fact if that failure amounts to a deception." Silence is caught where silence deceives. This is what covers the accident history not mentioned, the missing accessory, the fact that the service is unavailable in your area.

Failing to correct a misapprehension. A positive duty. Where a supplier can see the consumer has the wrong end of it and says nothing, the section treats the silence as the representation.

The "new" rule

Section 41 prohibits falsely representing that goods are new or unused, if they are not, or if they are reconditioned or reclaimed.

There is one exception, and it is narrow. Goods may lawfully be described as new where they have been used only

"by or on behalf of the producer, importer, distributor or retailer" for "reasonable testing, service, preparation or delivery"

That exception is what allows a genuinely unsold floor model, or a vehicle driven from the port to the dealership, to be sold as new. It does not cover an item that a customer bought, used and returned. It does not cover a refurbished unit. And it does not cover a reconditioned appliance, however well reconditioned.

So "new" is not a marketing register. It is a factual claim with a statutory meaning.

The other representations the section names

Section 41 goes on to prohibit false representations about a range of specific matters. Among them:

• that goods are of a particular standard, quality, grade, style or model
• that goods or services are available, or will be available within a specified time
• that goods have particular ingredients, performance characteristics, accessories, uses, benefits or qualities
• that goods or services have a particular sponsorship or approval
• about the supplier's own status or affiliation
• about a price advantage
• about the availability of a service, including repairs or servicing
• about an employee's authority to conclude an agreement

That last one is worth pausing on. A salesperson who assures you they can approve something they cannot, or that head office will honour something it will not, is engaging a specifically named prohibition.

The section lists more than these, and we have not reproduced it exhaustively — treat the list above as the categories we can state rather than as the boundary.

What it changes in a dispute

The practical value of section 41 is that it reframes the argument.

Without it, a consumer complaining about a sales conversation is asserting their recollection against the supplier's, about something not written down. With it, the questions become specific and answerable:

• What material fact was represented? Not "they oversold it" — which fact.
• Was it expressed or implied, by words or conduct? Both count.
• Was a material fact left undisclosed in a way that deceived? Silence is in scope.
• Did the supplier see the misapprehension and leave it? That is a separate breach.

Framing a complaint that way gets a different reply from a supplier than an accusation of dishonesty, and it is a good deal harder to dismiss.

"Material fact" is the boundary

Everything in section 41 turns on materiality, so it is worth being clear about where the line falls.

Opinion is not a material fact. "This is the best coffee machine on the market" is a claim nobody could verify and no reasonable consumer treats as information. "Our service is second to none" is the same.

A verifiable characteristic is a material fact. Whether the machine has a milk frother, whether the warranty is two years or one, whether the model is the current one, whether the fabric is leather, whether the phone is dual-SIM.

A fact that would have changed the decision is material. The test is practical rather than technical: if the consumer had known, would it have mattered to whether, or on what terms, they bought? Accident history on a vehicle, a service that is unavailable in their suburb, a subscription needed to use the product — all of them matter, and all of them are the sort of thing that gets left unsaid.

The grey area is the one marketing lives in: a true statement arranged to create a false impression. Section 41 covers that expressly, because it prohibits ambiguity and innuendo as to a material fact and representations made "indirectly" or by conduct. A supplier who says only true things and leaves you believing something untrue is not outside the section.

The pattern in a sales conversation

Three moments account for most section 41 complaints, and all three are recoverable if you notice them at the time.

The comparison. "It is the same as the one you were looking at, just a different brand." Whether it is the same is a material fact about standard, quality, grade, style or model.

The reassurance about time. "We will have it by Friday." Representing that goods or services are available, or will be available within a specified time, is specifically named.

The promise about authority. "I will get that approved for you." A false representation about an employee's authority to conclude an agreement is also specifically named.

None of those is a lie when it is said. Each becomes one when it turns out not to be true and nobody corrects it — which is the failure-to-correct limb doing its work.

Evidence, because it always comes down to evidence

Write it down the same day. What was said, by whom, at what time. A dated contemporaneous note carries real weight; a recollection assembled three weeks later does not.

Keep the marketing material. The pamphlet, the listing, the screenshot with the date, the specification sheet. A representation in writing removes the argument entirely.

Confirm material claims by email before you buy. "Confirming as discussed: this unit is new and unused, and supports X." A supplier that will not confirm in writing what it said out loud has told you something useful.

For a used vehicle or appliance, ask the "new" question directly. Has this been returned, reconditioned, refurbished, or used by a customer? Get the answer in writing.

Do not sign an acknowledgement you know to be untrue — that you inspected, that no representations were made, that you relied on your own judgement. Those clauses exist precisely to make a section 41 complaint harder.

Where it sits among the marketing provisions

Where the supplier will not engage, the National Consumer Commission and the provincial consumer affairs offices take these complaints; for financial-sector suppliers see where to complain about a bank, insurer or credit provider. Suppliers reviewing their own copy will find the wider picture in Consumer Protection Act obligations for a small business.

Frequently asked

Is marketing exaggeration illegal? Section 41 names "exaggeration, innuendo or ambiguity as to a material fact" among the prohibited conduct. The qualifier is materiality — a fact that matters to the decision, rather than general praise.

They did not lie, they just did not mention it. Failing to disclose a material fact is caught where that failure amounts to a deception.

The salesperson knew I had misunderstood and said nothing. Section 41 covers failing to correct a consumer's misapprehension where leaving it uncorrected amounts to a false representation.

Can a shop sell a returned item as "new"? Representing goods as new or unused when they are not, or when they are reconditioned or reclaimed, is prohibited. The exception covers only use by or on behalf of the producer, importer, distributor or retailer for reasonable testing, service, preparation or delivery.

Is a floor model "new"? It can be, if its use falls within that narrow exception. Ask what it was used for and by whom, and get the answer in writing.

The salesperson promised something head office will not honour. A false representation about an employee's authority to conclude an agreement is specifically named in the section.

Does this apply to online listings? Section 41 speaks of representations to a consumer by words or conduct, without limiting the medium. Screenshot the listing with the date visible.