In a ruling dated 15 September 2009, the Directorate ruled that the respondent’s advertisement claiming, inter alia, “20 Kilos in 3 Weke!!” (20 Kilos in 3 Weeks) and containing several personal references of people losing weight as a result of using this product, was in breach of the Directorate ruling dated 24 May 2007. The complainant who brought the potential breach to the ASA’s attention.
|Be-Trim / L De Weerdt / 8660|
|Ruling of the : ASA Directorate|
|In the matter between:|
|Louise De Weerdt||Complainant(s)/Appellant(s)|
|Boundlesstrade 149 t/a Be-Trim||Respondent|
02 Dec 2009
In a ruling dated 15 September 2009, the Directorate ruled that the respondent’s advertisement claiming, inter alia, “20 Kilos in 3 Weke!!” (20 Kilos in 3 Weeks) and containing several personal references of people losing weight as a result of using this product, was in breach of the Directorate ruling dated 24 May 2007. The complainant who brought the potential breach to the ASA’s attention (Dr HA Steinman), and the respondent were afforded an opportunity to comment on whether or not sanctions in terms of Clause 14 of the Procedural Guide were appropriate.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach ruling, Clause 14 of the Procedural Guide (Sanctions) was taken into account.
COMPLAINANT’S COMMENTS ON SANCTIONS
Dr Steinman submitted that it is apparent from the respondent’s attitude, that it does not have much appreciation or respect for the ASA. Sanctions must be sufficient to not only act as a deterrent at stopping this flagrant abuse of the consumer, but also send out a warning to other similar advertisers. He requested that the respondent be forced to place advertisements in all media in which this or similar advertisements were run, apologising to consumers for misleading them, and offering a full and immediate refund.
RESPONDENT’S COMMENTS ON SANCTIONS
The respondent submitted arguments on the product’s efficiency and its personal experience with the product. It believes that it has complied with the ASA Directorate ruling of 24 May 2007. The complainant’s comments are unfounded and offensive and his request is far too excessive, unfair, unreasonable and vindictive. The respondent has not misled the consumer. It was added that it has gone to incredible length to ensure that the Be-trim Weight Loss System is a fully comprehensive one, covering all aspects of weight loss. It also submitted documentation in support of its argument that the product / system works as claimed.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties. Substantiation Clause 4.1.7 of Section II provides, inter alia, “It is specifically noted that the Directorate may consider new substantiation submitted after a ruling has been made by the ASA rejecting substantiation or upholding a complaint based on substantiation.” The respondent submitted documentation relating to, inter alia, Casein Protein, Whey Protein, Soy Protein, Fibre and Calcium.
While it did not specifically request the Directorate to consider this documentation, it appears that it intended for the Directorate to do so, as its letter dated 3 November 2000 states, “Please see the attached documents that I have included which detail Positive Weight Loss research that has been done on the ingredients in our products”. It should be noted that the Directorate was only tasked with considering whether or not sanctions are appropriate given the breach of the previous ruling. The complainant has not been afforded an opportunity to comment on the new substantiation and as such it cannot be considered at this stage.
For the respondent’s guidance, however, the Directorate points out that there is no information suggesting that new substantiation emanates from, or was evaluated by an independent, credible expert in this field. More importantly, however, the information provided is not product-specific, but rather relates to selected ingredients. It is trite that the ASA requires independent verification from a credible expert that the advertising claims are true for the product as a whole, when used at the recommended dose. No such information has yet been submitted. Therefore, the weight loss claims remain unsubstantiated and in breach of Clause 4.1 of Section II at this time. The respondent is therefore not currently entitled to make such claims.
In considering sanctions, the Directorate takes into account several factors, most notably the nature of the contravention, any history the respondent has with the ASA, possible harm done to consumers or competitors as a result of non-compliance. The complainant requested the respondent to be forced to place advertisements in all media in which this or similar advertisements were run, apologising to consumers for misleading them, and offering a full and immediate refund. The complainant, as a person experienced in dealing with the ASA should be aware that the ASA cannot force the respondent to refund the consumers. The only sanction that appears to match that suggested by the complainant is that of adverse publicity as contemplated in Clause 14.4 of the Procedural Guide.
However, this sanction is usually reserved for flagrant and intentional disregard for the Code or existing rulings. The information at hand does not suggest that this is the case. In fact, Dr Steinman’s original complaint made no mention of the previous ruling and it appears that he was not aware of it when he complained.
Placing an adverse publicity statement as requested by the complainant at this time appears somewhat harsh given that the ruling dated 15 September 2009 was the first instance of breach of a ruling made more than two years ago. Given the above, and given that the respondent is relatively inexperienced in ASA matters, the Directorate is satisfied that adverse publicity as prescribed in Clause 14.4 of the Procedural Guide is not appropriate.
Having said that, however, it also appears that the respondent could benefit from obtaining advice in this regard, especially given the nature of the industry in which it operates, which is often the focus of complaints brought to the ASA. In light of the above, and given that the respondent was found guilty of breaching the previous ruling, the Directorate imposes a sanction in terms of Clause 14.2 of the Procedural Guide on the respondent. In terms of this sanction, the respondent is ordered to submit the proposed amendments, original advertisement and all previous ASA rulings to the ACA Advisory Service for pre-publication advice. It should be noted that this is a once-off pre-clearance which would serve as a learning experience for the respondent.
The respondent will clearly benefit from the guidance. An Ad-Alert to this effect will be issued to members advising them of the sanction.