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Homemark Pest Magic – no magic, ASA ruling

Posted 21 May 2012

Two breach rulings were submitted to the ASA in regard to Homemark’s Pest Magic. Readers will be aware of the numerous website postings of consumers claiming that the product does not work and simply a big con. Readers will be aware that Homark has previously sold health products that were regarded as scams by the USA FTC (Federal Trade Commission). The companies were subsequently shut down.

In the first ruling, the ASA agreed that there was no proof that the product works with a 100% guarantee, and in the second, the ruling was in Homemark’s favour stating: ” . . . the claim “microprocessor design” is similar to claiming that the device or its component was “inspired by” microprocessors or that its design was based on microprocessors. On the contrary, claiming that the device is “driven” by a microprocessor implies that it contains and makes use of a microprocessor. These two concepts are not synonymous and therefore do not indicate a breach of the original ruling.”

Homemark Pest Magic / CP Kotze / 10695
Ruling of the : ASA Directorate
In the matter between:
Mr CP Kotze Complainant(s)/Appellant(s)
Homemark (Pty) Ltd Respondent

21 May 2012

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6092

BACKGROUND
In Homemark Pest Magic / C P Kotze / 10695 (4 April 2008) the Directorate ruled that the respondent did not provide any substantiation to prove that its Pest Magic product is “100% effective”. At the time, the complainant argued that the product has no effect against roaches, thus nullifying the claimed 100% efficacy.

The packaging stated, inter alia, “Environmentally friendly and 100% effective”.

The respondent was unable to provide satisfactory evidence, and was instructed to withdrawn the claim in accordance with the findings within immediate effect and within the deadlines stipulated in Clause 15.3 of the Procedural Guide.

SUBSEQUENT TO THE RULING
On 25 April 2012 Mr Kevin Charleston lodged a breach complaint against the respondent’s television commercial which was seen on BBC Entertainment, as well as on the respondent’s website. He provided the following URL:

http://www.homemark.co.za/product/house-andhome/kitchen/pest-magic.

The complainant submitted that the voice-over claims as follows:

“Pest Magic takes the computer technology and gives you the ultimate pest repellent. With its enhanced microprocessor design we guarantee to rid your home of spiders, ants, roaches, rats, mice, silver-fish, and even more”.

The reference to “guarantee” is not explained. In the context used, it clearly implies that the product will make “certain” of a specific outcome as defined in the dictionary. The complainant concluded that the use of “guarantee” was a “… disingenuous and misleading usage which makes an equivalent claim to being ‘100% effective … against roaches’ …”

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 explained that it had substituted the words “100% effective” with the words “incredibly effective”. The word “guarantee” has always been in use and is effectively a new complaint raised by the complainant.

The respondent added that it has no intention whatsoever to violate any Directorate rulings, or to make misleading statements. Unfortunately the use of words may at times lead to different interpretations by different people.

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

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”. This implies that it is the duty of the recipient of an adverse ruling to ensure that it complies.

Clause 3.6 of Section I of the Code states “When objections in respect of advertisements that were amended resulting from an ASA ruling are received, both the original and amended version will be taken into consideration”.

The essential question before the Directorate is whether or not the respondent’s advertisement is in breach of the original ruling. For this to be the case, the respondent would have to be making the same, or materially similar claims to those originally complained of. In this instance, the above question needs to be answered in relation to the efficacy of the product.

The Directorate accepts that it has not ruled on the word “guarantee”. However, the complainant is clearly questioning the overall communication of the commercial, arguing that, in effect, the message is still that the product is guaranteed to get rid of, inter alia, roaches. In doing so, it still implies 100% efficacy, and is therefore in breach of the previous ruling.

Considering the overall message of the commercial, the Directorate is inclined to agree with the complainant.

Firstly, it is noted that the current commercial still clearly refers to and even depicts cockroaches despite the fact that the respondent was unable to prove any efficacy against this insect. This is of some concern for the Directorate.

Secondly, the commercial makes prominent mention of the fact that:

“… the answer is the incredibly safe and effective Pest Magic …”

“… Pest Magic literally makes those pests disappear …”,

“DRIVES pests out”,

“PREVENT pests coming back” (accompanied by a similar voice-over),

“… we guarantee to rid your home of spiders, ants, roaches, rats, mice, silver-fish, and even more …”,

“… drive out pests and keep them out …”,

“… 24 hour a day protection …”

In this context, the reference to “… guarantee to rid your home of …” can only be interpreted as a definite, which implies complete effectiveness. This in turn is synonymous with the previous claim of “100% effective”.

In light of the above, the Directorate agrees that the current commercial effectively communicates the same message as was the case in the previous execution despite the removal of the claim “100% effective”. As a result, the Directorate finds the current commercial in breach of the previous ruling and therefore in breach of Clause 15 of the Procedural Guide.

The breach allegation is upheld.

Ordinarily, the Directorate would contemplate whether or not sanctions in accordance with Clause 14 of the Procedural Guide are warranted. However, it is noted that the respondent did remove the claim previously ruled against, and that the current breach is as a result of a residual message still communicating the same thing despite the removal of the original claim.

The Directorate is therefore not considering sanctions at this time, but the respondent would do well to ensure that its advertising is in line with all prior rulings.

 

 

 

 

Homemark / H Beukes / 10637
Ruling of the : ASA Directorate
In the matter between:
Mr Herman Beukes Complainant(s)/Appellant(s)
Homemark (Pty) Ltd Respondent

17 May 2012

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6096

BACKGROUND
In Homemark / H Beukes / 10637 (27 March 2008) the Directorate accepted the respondent’s voluntary undertaking to withdraw the claim “… microprocessor drive …”from its advertising for its Pest Magic pest repeller. The undertaking was accepted on condition that the packaging in its complained about format was not used again in future, and not disseminated after 31 May 2008.

SUBSEQUENT TO THE RULING
On 25 April 2012 Mr K Charleston lodged a breach complaint against the respondent’s television commercial appearing on BBC Entertainment as well as on the respondent’s website, http://www.homemark.co.za/product/house-andhome/kitchen/pest-magic.

It was submitted, inter alia, that the ruling required the removal of the claim “Microprocessor Driven” from its packaging. Reference was also made to a similar complaint against the claim “100% effective”. However, this issue is discussed in another ruling under the reference Homemark Pest Magic / CP Kotze / 10637.

The complainant submitted that the voice-over used in the commercial claims:

“Pest Magic takes the computer technology and gives you the ultimate pest repellent. With its enhanced microprocessor design we guarantee to rid your home of spiders, ants, roaches, rats, mice, silver-fish, and even more”.

While the commercial no longer specifically claims that the device is “Microprocessor driven”, the current wording is confused and unclear. What is clear is the intention that the words “takes computer technology” and “microprocessor design” are meant to convey, which is effectively the same meaning as the original wording, or at best a disingenuous attempt to mislead consumers into believing that the device has some computing ability which is not the case.

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 words currently used make it clear that the product “uses computer technology” which is a true statement. It also mentioned that the product refers to a microprocessor “design” and does not claim to be “driven” by a microprocessor. The design of the integrated chip timer controller is a “microprocessor-type” design.

There is a clear distinction between saying that a product is “microprocessor driven”, which implies the presence of a built-in microprocessor, and saying that the product uses “microprocessor-type design” as basis for its architecture. The former was not a true statement for this product, but the latter is.

ASA DIRECTORATE RULING

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

At the outset it is recorded that the breach allegation only relates to the television commercial as used on television and on the respondent’s website. The text accompanying the commercial on the website makes no mention of a “microprocessor”. As such, the ruling is limited only to the television commercial.

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”. This implies that it is the duty of the recipient of an adverse ruling to ensure that it complies.

Clause 3.6 of Section I of the Code states “When objections in respect of advertisements that were amended resulting from an ASA ruling are received, both the original and amended version will be taken into consideration”.

The current complaint is based on the use of the words “enhanced microprocessor design”.

The question before the Directorate is whether or not the amended claim conveys similar message as the original claim. Given the difference in meaning, the Directorate does not believe that this is the case.

In short, the claim “microprocessor design” is similar to claiming that the device or its component was “inspired by” microprocessors or that its design was based on microprocessors. On the contrary, claiming that the device is “driven” by a microprocessor implies that it contains and makes use of a microprocessor. These two concepts are not synonymous and therefore do not indicate a breach of the original ruling.

If the complainant wishes to dispute the legitimacy of the new claim, this would be subject to a new investigation. However, the submissions before the Directorate do not appear to indicate a breach as alleged.

In light of the above, the respondent is not found to be in breach of previous ruling and therefore not in breach of Clause 15 of the Procedural Guide.

The breach allegation is dismissed.

1 comment to Homemark Pest Magic – no magic, ASA ruling

  • Gideon van Dyk

    I also bought the”Pest Magic” on 5/3/2014 and returned it to the store where I bought it today (28/3/2014) because it’s absolutely worthless. I had two rats in my house which I had to catch with traps after installing the Pest Magic. After three weeks my cockroach problem did not abate. The cockcroaches were actually hiding behind the apparatus. This makes a mockery of the product claims! Gideon van Dyk.

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