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ASA Ruling: A Vogel Neuroforce breach

Posted 12 January 2012 

In an email dated 17 November 2011, a third party, Prof Roy Jobson, submitted that the respondent’s product is currently still being promoted on several website pages belonging to the respondent. Prof Jobson specifically supplied the relevant URL’s to support his contention that the respondent is in breach of the previous rulings.

He submitted, inter alia, that the respondent is a repeat offender and should have ensured that all these promotions of Neuroforce were removed from its website many months ago. The complainant further requested that the most severe sanctions possible be imposed on the respondent. 

A Vogel Neuroforce / S Kaye / 16323

Ruling of the : ASA Directorate
In the matter between:
Sydney Kaye Complainant(s)/Appellant(s)
SA Natural Products (Pty) Ltd Respondent
 

05 Jan 2012
http://www.asasa.org.za/ResultDetail.aspx?Ruling=5895
 

BACKGROUND

In A Vogel Neuroforce / S Kaye / 16323 (9 February 2011), the Directorate rejected Dr Naudé as an independent and credible expert in the relevant field, and as a result, rejected the substantiation submitted by the respondent. This ruling was appealed. 

In a ruling dated 9 November 2011, the Advertising Standards Committee (the ASC), in considering (and ultimately dismissing) the appeal, ruled, inter alia, as follows: 

“The ASC concludes that even accepting Dr Naudé as an independent and credible expert, his report supports the … contention that certain of the claims made … are unsubstantiated, misleading, deceptive or ambiguous …” 

SUBSEQUENT TO THE RULING

In an email dated 17 November 2011, a third party, Prof Roy Jobson, submitted that the respondent’s product is currently still being promoted on several website pages belonging to the respondent. Prof Jobson specifically supplied the relevant URL’s to support his contention that the respondent is in breach of the previous rulings. 

He submitted, inter alia, that the respondent is a repeat offender and should have ensured that all these promotions of Neuroforce were removed from its website many months ago. The complainant further requested that the most severe sanctions possible be imposed on the respondent. 

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

In light of the breach allegation the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant. 

RESPONSE

The respondent submitted, inter alia, that the complainant, in his breach allegation, referred to several articles based on promotions, interviews and advertisements that were published over a year ago, and were in the archives of the website. This suggests that Prof Jobson went out of his way to find old articles that were published prior to the ruling and were put in its archives. 

The respondent acknowledged that this is technically a breach of the ruling. However, it explained that it was not deliberate and resulted simply from an oversight. In reality, thousands of pages are archived. Given this, it must have missed a few pages. 

The respondent added that the breach allegation brought its attention to the articles that were missed, and it immediately had them removed. It also submitted that this was not a disregard for the Directorate ruling, but a bona fide error, for which it apologises. 

ASA DIRECTORATE RULING

The ASA Directorate considered the relevant documentation submitted by the respective parties. 

It appears from the response that the breach allegation has merit, and that, at the time of the breach complaint, the claims ruled against (or claims similar in nature) appeared on the respondent’s website, in contravention of the original ruling. While the respondent immediately took action to remove them, this action is belated, and only came subsequent to the breach allegation. 

The respondent attributed this breach complaint to a bona fide error and not a disregard for the Directorate ruling. 

Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”. 

Given the above, the Directorate is satisfied that the respondent’s current advertisement is in breach of the original ruling and therefore in breach of Clause 15 of the Procedural Guide. 

However, the breach does not appear to be a flagrant and callous disregard for the Code, but rather an oversight on the part of the respondent (which was immediately rectified, according to the respondent). While the fact that such material was available on the respondent’s archives does not absolve the respondent from any accountability, the Directorate is willing to accept, at this time, that this was a genuine oversight. 

The Directorate therefore does not believe sanctions are appropriate at this time, as the respondent does not, at this time, appear to be a habitual offender. 

The respondent is cautioned, however, that the responsibility to ensure compliance with the ASA ruling lies with it. Should further justified breach allegations be received, the Directorate may consider the imposition of additional sanctions as allowed for in Clause 14 of the Procedural Guide. This ruling may also be taken into consideration at such a time. 

The respondent is again instructed to permanently remove the relevant claims with immediate effect and refrain from making such claims again in future. 

The breach allegation is therefore upheld but no sanctions will be imposed at this time.

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