Posted 05 February 2014
A consumer laid a breach compliant with the ASA against the Arcadia’s print advertisement entitled “Believe it! Flab disappears without expensive surgery”. The advertisement appeared in the Sunday Times on 1 December 2013. In essence, the complainant submitted that the advertisement is virtually the same as the one he originally complained about. All the original efficacy claims have remained and the only modification is that it explicitly identifies the product as Chitosan.
24 Jan 2014
In Arcadia Home Shopping “Reduline 36” / K Charleston / 22018 (3 September 2013) the Directorate partially upheld a consumer complaint against the respondent’s print advertisement that appeared in the Sunday Times during March 2013. The Directorate ruled, inter alia, that the sweeping, unqualified, and general claim of being “… safe to use …” was currently unsubstantiated and in contravention of Clause 4.1 of Section II of the Code.
The Directorate also held that it was not satisfied that the respondent has submitted adequate substantiation to show that its product, when bought and consumed at the recommended dose, would deliver on the efficacy claims disputed by the complainant. The respondent’s advertisement was therefore found to be in contravention of Clause 4.1 of Section II of the Code.
The respondent was instructed to withdraw its advertisement with immediate effect and refrain from using it again in its current format in future.
The advertisement promoted the respondent’s “Reduline 36 LIPO-SCULPTURE CAPSULES AND DIET PLAN” as the solution to making “… all the flab around your ‘problem zones’ disappear without expensive or extensive interventions …”
Some of the claims objected to by the complainant were:
“Reduline36 capsules, used in combination with the Reduline36 kilojoule restricted diet plan, forces the fat cells in your body to literally starve”.
“The active ingredient in the Reduline36 capsules is a natural dietary fibre. Its particularly high fat absorbing capacity helps to neutralize calories from fatty foods. The natural dietary fibre forms a gel substance in the stomach, which combines with the food eaten. There the fat is absorbed and turned into an insoluble substance. These tied fats are not used in the metabolic process, but rather leave the body undigested”.
“Are Reduline36 capsules safe to use? Yes. Reduline36 capsules have been developed by a leading German laboratory”.
SUBSEQUENT TO THE RULING
On 2 December 2013 the complainant lodged a breach compliant against the respondent’s print advertisement entitled “Believe it! Flab disappears without expensive surgery”. The advertisement appeared in the Sunday Times on 1 December 2013.
In essence, the complainant submitted that the advertisement is virtually the same as the one he originally complained about. All the original efficacy claims have remained and the only modification is that it explicitly identifies the product as Chitosan.
It added, inter alia, that the only real change is in safety claim. Whilst it no longer makes “unqualified” claim of being “safe to use”, this is still a general and sweeping claim: “Reduline 36 capsules are safe to use, unless you are allergic to shellfish”. Arguments were made as to why this would still potentially be incorrect.
Finally, the complainant argued that the respondent has dealt with the ASA on many occasions, and would be familiar with the requirements for substantiation. Sanctions are therefore warranted.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegations the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.
The respondent submitted that it has methodically re-worked the advertisement to address the adverse rulings on the points raised. It is inconceivable how one could come to the conclusion that it “blatantly ignored” the ruling.
The complainant complained about the danger of using the product by people who are allergic to shellfish. This was acknowledged, and it has since expressly incorporated an appropriate warning to this effect in its advertisement. In addition, it now explicitly mentions that the active ingredient in the product is Chitosan. Consumers who have any concern for their safety based upon the active ingredient are also advised to consult with their medical practitioner before using the product.
Insofar as substantiation is concerned, it interpreted the ruling to mean that it was allowed to rely on its previously submitted substantiation (on Chitosan) if it is expressly clarified that this is the only active ingredient.
It has applied the “reasonable man” legal standard by explicitly drawing the consumers’ attention to the active ingredient, and offering advice prior to purchase. It has gone beyond reasonable steps to ensure compliance, and should be allowed to continue using this advertisement.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
The question before the Directorate is whether or not the respondent’s advertising is in breach of the previous ruling. For this to be the case, the respondent would have to be making the same, or substantially similar claims to those originally ruled against. Given that the current dispute relates to two issues, namely efficacy claims and references to being safe, the Directorate will deal with these issues separately.
Safe to use
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”.
When considering both the original advertisement and the amended advertisement, there is clearly a significant difference. The original advertisement read “Are Reduline capsules safe to use? Yes, Reduline capsules have been developed by a leading German laboratory. Each capsule contains natural ingredients”.
In dealing with this issue, the Directorate held that it was a sweeping, unqualified, and general claim which had not been substantiated. The respondent was expressly instructed to “… Refrain from using the unqualified, sweeping reference to the product being ‘… safe to use …’ in its current format”.
In the amended advertisement the claim “safe to use” is qualified. It states “Reduline 36 capsules are safe to use, unless you are allergic to shellfish”. It should be noted that the original complaint also only took issue with shellfish allergies, which the respondent has now addressed.
Clearly the current claim is not the same or substantially similar to an extent that would constitute a breach.
This aspect of the breach complaint is dismissed.
The Directorate does not believe the respondent’s interpretation of the original ruling is accurate. The ruling expressly stated as follows:
“The Directorate has several difficulties with the respondent’s substantiation.
Firstly, all the evidence relied on appears to relate only to the active ingredient Chitosan, as opposed to the respondent’s Reduline36 product as a whole. This means that there is currently nothing before the Directorate to show that the respondent’s actual product, as sold, and if consumed at the recommended dose, would deliver on the claims made.”
The ruling also explained why such an approach is not only reasonable, but also appropriate.
In addition to this, the Directorate specifically pointed out that “… the respondent has not argued, or submitted any documentation to illustrate why the Directorate should accept Dr Niedermeyer as an independent and credible expert in the field to which the claims relate”. It added that “The consequence of this is that even if Dr Niedermeyer’s verification applied to the respondent’s actual product (which does not appear to be the case), there is nothing to convince the Directorate that Dr Niedermeyer is a suitable expert in terms of Clause 4.1 of Section II of the Code”.
Finally, the ruling concluded that “For all the above reasons, the Directorate is not satisfied that the respondent has submitted adequate substantiation to show that its product, when bought and consumed at the recommended dose, would deliver on the efficacy claims disputed by the complainant …” (our underlining).
When looking at the amended advertisement, the overwhelming impression is still that Reduline36, as a product (which contains Chitosan), would enable users to lose weight. The respondent has still not submitted any acceptable evidence to this effect.
In light of the above, the respondent’s new advertisement is found to be in breach of the previous ruling in respect to the efficacy claims made. It is therefore also in contravention of Clause 15 of the Procedural Guide.
The complainant referred to some previous rulings, arguing that sanctions are warranted. While the Directorate agrees that the respondent is not unfamiliar with the ASA, it does not share the complainant’s view that sanctions are called for at this time.
Of the rulings identified, all date back to 2010 or before. The only one issued in 2013 (Vita Aid pH Balance / K Charleston / 21879 (23 August 2013)) records the respondent’s voluntary undertaking to withdraw the advertising.
While this is does not mean that the respondent is absolved of all responsibilities, it does at least indicate that the respondent has not acted in a manner that suggests a typical serial offender or that would suggest a flagrant disregard for the Code.
Accordingly, the Directorate does not believe sanctions are appropriate at this time. The respondent is cautioned, however, that the responsibility to ensure compliance with the ASA ruling lies with it. Should the Directorate uphold further justified breach allegations, it may take this ruling into account when considering the imposition of sanctions.
The breach allegation is therefore upheld, with no additional sanctions imposed on the respondent at this time other than again reminding the respondent to stop making any direct or implied efficacy claims until adequate substantiation has been accepted by the ASA by means of a new Directorate ruling. The respondent’s attention is drawn to Clause 4.1.7 of Section II of the Code in this regard.
The breach allegation is partially upheld.