Posted 29 March 2010
Arcadia print advertisement for its Citrax weight loss capsules that appeared in the Sunday Times Magazine during November 2009, was headed with a statement by a Physiotherapist, Maja Šcepanovic, reading, “I lost 50 kilos in only six months – WITHOUT DIETING!” At the bottom of the advertisement the disclaimer reads, “Diet aids such as these are only effective when taken in conjunction with or as part of a kilojoule-controlled diet”.
How did the ASA rule? Read on . . .
25 Mar 2010
Mr Wilson lodged a consumer complaint against an Arcadia print advertisement for its Citrax weight loss capsules that appeared in the Sunday Times Magazine during November 2009.
The advertisement is headed with a statement by a Physiotherapist, Maja Šcepanovic, reading, “I lost 50 kilos in only six months – WITHOUT DIETING!” At the bottom of the advertisement the disclaimer reads, “Diet aids such as these are only effective when taken in conjunction with or as part of a kilojoule-controlled diet”.
In essence, the complainant submitted that the wording of the advertisement is contradictory. Given that these types of dieting products are widely regarded as ineffective, consumers should be clearly and accurately informed.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:
• Section II, Clause 4.1 – Substantiation
• Section II, Clause 4.2.1 – Misleading claims
• Appendix E ? Advertising for Slimming
The respondent submitted that the complaint was not required to be answered under the clauses dealing with “misleading claims” and “substantiation” as the complainant did not raise the complaint in terms of these issues. The respondent denied that it has made any claims as it merely quoting a user of the product who has provided testimony under oath as to her experience of the product.
Appendix E specifically requires that any advertisement for a weight loss product include a statement that such a product must only be used in conjunction with a kilojoule-controlled diet. Such statement is included in the advertisement in accordance with the requirements of the Code.
The respondent also denied that there is any contradiction as one sentence is a statement of fact and opinion, provided by a person reflecting their bona fide personal experience, while the other is a regulatory statement issued by a legal body. Given that the opinion is that of the model, the respondent was not at liberty to change the wording.
The respondent has been extremely compliant in including the regulatory statement from the ASA.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
Clause 4.1 of Section II of the Code requires that advertisers hold substantiation for any direct or implied claims made in their advertisements.
The Directorate notes that the complainant did not request substantiation regarding the product’s efficacy, but rather complained that the advertisement contained contradictions which are misleading.
Given the above, there is no dispute before the Directorate about the efficacy claims made. Clause 4.1 of Section II is therefore not applicable in this matter.
The respondent is reminded, however, of the requirements of Clause 4.1 of Section II in relation to its weight loss claims made.
Clause 4.2.1, Section II, states that an advertisement should not contain any statement or visual presentation, which, directly or, by implication, omission, AMBIGUITY, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer (our emphasis). It is trite that contradictory statements in advertising are likely to create ambiguity, which is likely to mislead.
The respondent’s assertion that it has not made any claims is summarily rejected. It is clear that the aim of this advertisement is to promote the sale of its product. While true that it appears to rely on a testimonial, that testimonial is used in a commercial manner to create the expectation with readers that they too can achieve such results if they used the product.
In USN / De Castro Ramos & Others / 875 (17 June 2005) where a similar issue was considered, the Directorate stated as follows:
“The claim ‘Change your body in less than 12 weeks!’ … precedes ‘before and after’ type photos. The advertisements also carry statements such as ‘Body fat before – 20% after – 6.5% Lost 18 kg’s of body fat Gained 5.5 kg’s lean muscle’ and ‘With USN’s supplements and 4 days training a week it took Johan less than 12 weeks to achieve this result. He could not believe how easy it was’. This is likely to create an impression with the hypothetical reasonable consumer that such results are within reach. When viewed as a whole, the advertisements convey the message that the average consumer will achieve similar results. The message conveyed is essentially ’if they could do it, so can you’.”
The same principle applies here. The Directorate is therefore satisfied that it is entitled to deal with the advertising objected to in its entirety.
The advertisement depicts, what appears to be a Physiotherapist, stating, “I lost 50 Kilos in only six months – WITHOUT DIETING!” In the copy she also states, “I was a bit sceptical, but I ordered one treatment. I took the capsules before my meals and continued to eat the same amount of food as before”.
It should be noted that words, “WITHOUT DIETING”, are in capitals, clearly done for emphasis. Ms Šcepanovic’s testimony further adds to the impression that this product is effective without any diet. The hypothetical reasonable person would, when looking at the advertisement, interpret it to imply that the product works without dieting. However, this impression is contradicted when the disclaimer is considered.
Although no proof of this has been presented, the Directorate is willing to accept, for the sake of the argument, that the story told in the advertisement is legitimate and true for the model. The respondent cannot, however, hide behind this fact in defending its contradictory statements. The overpowering emphasis is on the “WITHOUT DIETING”, only to have this contradicted by the mandatory disclaimer.
While the Directorate accepts that the Code requires a prominent mention of the fact that such products are only effective when used in conjunction with, or as part of a kilojoule-controlled diet, the respondent’s use thereof in this specific context creates ambiguity, which by inference is misleading.
In light of the above ambiguity, the respondent’s advertisement is misleading and in contravention of Clause 4.2.1 of Section II.
Given the above:
- The advertisement in its current format must be withdrawn;
- The process to withdraw the advertisement must be actioned with immediate effect on receipt of this ruling;
- The withdrawal of the advertisement must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;
- The advertisement may not be used again in its current format in future.
The respondent’s attention is drawn to the requirements of Clause 15.5 of the Procedural Guide.
The complaint is upheld.