Posted 06 June 2012
Ozone Health Studio claims ” placing a drop of blood on a slide to look at under a darkfield microscope. From this, they may be able to detect evidence of poor assimilation of fats or proteins, low nutrients and immune response, increased clotting factors, imbalance in pH levels, inflammation, low oxygenation and much more. ” This is so contrary to physiological and haematological principles!! Bizarre is a simple word to describe these claims.
This ASA ruling is interesting for it holds both the company marketing the product AND Groupon liable for the claims in the advertisement.
The ASA ruled against both.
01 Jun 2012
Mr Crookson lodged a consumer complaint against an Ozone Health Studio’s internet advertisement that appeared on the Groupon website.
The advertising is headed “Pay R125 for a Live and Dry Blood Analysis at Ozone Health Studio, valued at R350 (save 64%)”.
The body copy states, inter alia, as follows:
“The actual test is very straightforward, with the specialist pricking your finger – no need to shake in your boots, as this is more pinprick than Hannibal – and placing a drop of blood on a slide to look at under a darkfield microscope. From this, they may be able to detect evidence of poor assimilation of fats or proteins, low nutrients and immune response, increased clotting factors, imbalance in pH levels, inflammation, low oxygenation and much more.
The blood is then left to dry in the open air and once dried, it is placed under the microscope and magnified so that you can see how well your blood has coagulated. Studying the dry blood further could point out any other observations that need addressing, such as oxidative stress, loss of minerals, metals, heart conditions, bowel toxicity, reproductive problems, lymph congestion and vitamin deficiencies”.
In essence, the complainant submitted that heart problems are specifically listed in Appendix F of the Code. The complainant was also of the view that because this was the second of his complaint relating to Groupon, they are negligent by not checking the basics of the products that they advertise.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Appendix F of the Code (Reference to diseases in advertising) was taken into account.
The first respondent submitted that Groupon decides the pictures used in the advertising and choose the wording. It explained that Groupon has advertised many dry and live blood advertisements and use the same wording and imagery for all. The first respondent added that all wording is correct and accurate, and that the complainant has a misunderstanding of the practice. Evidence was also tendered in the form of contact details for satisfied clients.
As a result of the submissions from the first respondent, the Directorate offered the second respondent and opportunity to comment.
Cliffe Dekker Hofmeyer on behalf of the second respondent, initially submitted that the advertising merely appears on the Groupon website as part of the services provided by Groupon, which is, inter alia, the provision of advertising space. Each service provider wishing to offer a deal on the Groupon website must conclude an agreement with Groupon in terms of which information in respect of the limited number of deals available, and the normal/full price of the goods and/or services offered in terms of the deal, is set out. The agreement warranted that the information given by the advertiser is true and correct, and also indemnifies Groupon of any and all claims, suits and liabilities with respect to the deal offered on the Groupon website.
When the Directorate advised that it regards the second respondent as an appropriate respondent in the matter, it responded as follows:
Groupon is a large organisation that offers an average of 30 deals a day, sometimes up to 117 deals per day, and hundreds of agreements are concluded with merchants in advance regarding their goods and/or services on the Groupon website. Groupon can therefore be compared to a retailer such as Pick n Pay, marketing and selling the goods of a third party, such as Reckitt Benkiser or Tiger Brands. In the event that the products of these parties contained unsubstantiated claims, a consumer would not request substantiation from the retailer, but from the manufacturer or the entity making such claims.
It is clear that Ms Miller has more insight and knowledge about the industry as she has been in the industry for 20 years. Ms Miller is the person who has been doing live blood analysis for a long time and who is advertising her services. Groupon is not in Breach of the Code of Advertising Practice and the complaint should be referred to the correct party, being Ozone Health Studios.
Although Groupon assisted in selecting the artwork reflected in the advertisements, the advertisement is that of Ozone Health Studio. Groupon is not in a position to defend (or withdraw if necessary) any of the claims made in the advertisement. These claims can only be defended, amended and/or withdrawn by the responsible advertiser of the service which is Ozone Health Studio.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The second respondent submitted that the content of the advertising belongs to Ozone Health Studio and that Groupon only provides advertising space. It did, however, assist with the composition of the advertising. The Directorate therefore has to determine whether both Ozone Health Studios as well as Groupon are the correct respondents on the matter.
Ozone Health Studios was approached for a response on the matter. The response was that the content of the advertising, the wording and the picture, was decided upon by Groupon. There was, however, no disagreement from Ozone Health Studios in terms of the relevance of the content or the validity of the claims made in the advertising.
In the matter Groupon MP3 Player / RB Maulson / 19281 (3 April 2012) the second respondent was asked to comment, and in fact responded on the merits of a matter relating an Mp3 player offer on the Groupon website, presumably from a merchant not of the Tangwoo or Groupon business relations. This assumed responsibility on the part of Groupon in a matter before the ASA.
The first respondent also submitted that the content of the advertising was decided upon by Groupon.
While true that the first respondent is the entity that actually offers the service that was advertise, it cannot be ignored that the second respondent assisted in creating the advertisement in a manner, which indirectly benefitted itself in terms of sales generated from its website.
Given the above, the Directorate holds both Ozone Health Studio and Groupon responsible for the content of the advertising and cites both as respondents on the matter. When considering the definition of “advertiser” as contained in the Code, the Directorate is satisfied that the advertising essentially benefitted both respondent’s and therefore appeared “at the instance” of both parties.
Appendix F states, inter alia, advertisements should not make or offer products, treatments or advice for any of the following illnesses or conditions unless recommendations accord with a full product registration by the Medicines Control Council (MCC). One of the aliments on the list is ‘heart troubles’.
Neither respondent addressed the concerns raised by the complainant with respect to Appendix F of the Code. The Directorate can only make a determination based on the information currently before us.
“Heart troubles” is a condition stated in Appendix F, the advertising refers to “heart conditions” as one of the ailments where “Studying the dry blood further could point out any other observations that need addressing. It stands to reason that the service offered is advice on a condition mentioned in Appendix F as one that needs registration with the MCC. The Directorate has received no information from the respondents that the advertised service is registered with the MCC.
In light of the above, the advertising is found to be in contravention of Appendix F of the Code.
Given the above:
The advertising in its current format must be withdrawn;
The process to withdraw the advertising must be actioned with immediate effect on receipt of this ruling;
The withdrawal of the advertising must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;
The advertising may not be used again in its current format in future.
The respondents’ attention is drawn to Clause 15.5 of the Procedural Guide.
The complaint is upheld.