ASA Ruling – Biobust

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Posted 15 September 2010

1. What is the different level of evidence required to make the claim “BioBust is a natural formula that provides nutritional support to the body to increase fullness and firmness to the bust” in contrast to “Biobust is a natural formula that provides nutritional support that may assist the body to increase fullness and firmness of the bust”? Surely one still needs a high level of credible evidence to make a claim of “may result”?

2. Is there a substantial difference between “may cause breasts to enlarge” from “makes breasts enlarge” from a consumer’s perspective? (From a semantics point of view, the difference is clear)

3. Should the ACA Advisory Service be tasked with advising on scientific evidence when they appear to not have the required expertise? Who should be doing this?

The ASA argues that they are different claims.

Biobust / Dr HA Steinman / 3247
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Kenza Health (Pty) Ltd Respondent

14 Sep 2010

http://www.asasa.org.za/ResultDetail.aspx?Ruling=5288

BACKGROUND
In Biobust / Dr H A Steinman / 3247 (7 December 2005) the Directorate accepted the respondent’s voluntary undertaking to withdraw the claims, appearing on, inter alia, the website www.kenzahealth.co.za, for its BioBust product, in a manner that ex facie addressed the concerns raised by the complainant.

The advertising contained the following claims:
 

  • “BioBust is a natural formula that provides nutritional support to the body to increase fullness and firmness to the bust”;
     
  • “BioBust simply combines herbs that have been known and used for centuries to increase bust size”, and
     
  • “For fuller, firmer, more beautiful breasts. Naturally.”

This undertaking was accepted on condition that the claims in question are not used again in any media.

SUBSEQUENT TO THE RULING
In a ruling dated 30 June 2006 the respondent’s new substantiation emanating from Dr Arien van der Merwe was rejected by the Directorate on the basis that the Directorate was not satisfied that Dr van der Merwe qualified as an independent and credible expert in this particular field. This decision was later affirmed by the Advertising Standards Committee (The ASC) in its ruling dated 13 December 2006.

In Biobust / Dr H A Steinman / 3247 (23 July 2008), the Directorate held that the respondent’s testimonials constituted a breach of the previous relevant ruling. However, no sanctions were imposed on the respondent as a result of the breach because the breach allegation was received a day after the most recent ruling by the ASC, and because the respondent had since deactivated the entire website pending new substantiation. It appeared to be a continuation of the previously accepted bona fides of the respondent.

On 27 February 2009 the complainant lodged a breach complaint alleging that typing “Biobust” in a Google search delivers access to the respondent’s “about” and “testimonials” pages which are unchanged from the previous complaint. The breach allegation was dismissed on 30 March 2009 ruling because the Directorate was satisfied that the respondent has offered a reasonable explanation and should not be held responsible for search results emanating from Google search.

On 26 July 2010 another breach complaint was lodged against the respondent’s website, www.biobust.co.za. The complainant submitted the respondent continues to promote Biobust as a product that will or may result in fuller, firmer or more beautiful breasts, naturally, without a single piece of acceptable scientific evidence.

It submitted that the respondent laid low for some years and has now re-activated the website. There is no evidence that any of the changes described in the testimonials contained on the website are not simply what occurs naturally during a woman’s normal growth, or due to other factors.

The complainant requested sanction to be imposed on the respondent and not only Biobust product alone but against every product that the respondent produces.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation, Clause 15 of the Procedural Guide (Enforcement of rulings) was taken into account.

RESPONSE
The respondent submitted that it is clear from the history of the matter that the ASA at all times accepted Kenza’s bona fides in endeavouring to comply with the ASA rulings, and that breaches that occurred where as a result of honest mistakes or third party errors.

It referred to a letter dated 26 February 2008, in which the respondent engaged with the ASA and advised the following:

“Kenza Health … intends to use the following claims in future advertising:
 

  • ‘Biobust is a natural formula that provides nutritional support that may assist the body to increase fullness and firmness of the bust’;
     
  • ‘Biobust combines well known herbs that may assist the body to increase the bust size and fullness’
     
  • May assist the body with fuller, firmer, more beautiful breasts. Naturally.’

Kenza Health is of the opinion that it has a reasonable basis for making these claims based on the new, updated report from Dr Arien van der Merwe. You will note that these claims are amended versions of the claims previously ruled against by the ASA …

In view of the amendments to these claims, should we, in terms of Clause 4.1 of Section II, submit the necessary supporting substantiation for your consideration and ruling, or do you regard these amended claims as new claims for which the substantiation should only be submitted in response to a new complaint…”

In response, a letter dated 27 February 2008, a representative from the ASA advised, inter alia, that:

“Given the amendments made, and given that we can never assist in a manner that might be regarded as pre-clearance, you should approach ACA Advisory Service with the relevant rulings as well as proposed new claims. As you know, we are not bound by their approval, but it does indicate a measure of good faith on the part of your client.

I also need to mention that as far as the ASA is concerned, Dr Arien van der Merwe has not been accepted as an independent and credible expert in this field yet, as per the requirements of Clause 4.1 of Section II.”

The respondent duly submitted the new research report, relevant rulings and amended claims to the ACA Advisory Service for consideration. The ACA certificate submitted by the respondent is dated 6 March 2008, and states that these are amended claims and that the ACA representative is satisfied that Dr Arien van der Merwe is an independent and credible expert for the purpose of Clause 4.1 of Section II of the Code. Accordingly, the respondent is in a position to substantiate its amended claims should substantiation complaint be lodged with the ASA.

It submitted that it is clear from the above that sanction is uncalled for and that it is not in breach of the ASA Directorate ruling dated and, in particular, not based on the vague allegations raised by the complainant which identify no specific claims.

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

The Directorate is tasked with determining whether the respondent is in breach of the previous ASA Directorate ruling. To do so a consideration of whether or not the current claims are materially different to the original claims is required.

It should be noted that in a Biobust / Dr H A Steinman / 3247 (30 June 2006) the Directorate specifically rejected Dr Arien van der Merwe and as such it will not be prudent for the respondent to attempt to substantiate using her again. The ASC affirmed this on 13 December 2006 in its ruling. The respondent is also reminded that the discretion over who is accepted as an expert lies with the ASA not the ACA.

The previous offending claims were, inter alia,
 

  • “BioBust is a natural formula that provides nutritional support to the body to increase fullness and firmness to the bust”;
     
  • “BioBust simply combines herbs that have been known and used for centuries to increase bust size”, and
     
  • “For fuller, firmer, more beautiful breasts. Naturally.”

The amended claims are, inter alia,
 

  • BioBust is a natural formula that provides nutritional support that may assist the body to increase fullness and firmness of the bust”;
     
  • BioBust combines well known herbs that may assist the body to increase the bust size and fullness”;
     
  • May assist the body with fuller, firmer, more beautiful breasts. Naturally”.

The difference between the previous claims and the amended claims is the insertion of the words “may assist”. In terms of the Oxford Dictionary Thesaurus & Wordpower Guide the word “may” means expressing possibility and “assist” means help.

Therefore it is the Directorate’s view that the amended claims amount to a new complaint because it was not previously considered in this context.

In light of the above, the Directorate is satisfied that the respondent is not in breach of previous rulings and therefore not in breach of Clause 15 of the Procedural Guide.

The breach allegation is dismissed.

Of course I will be following up with a new complaint to the ASA because surely one still needs evidence to argue that a product “may” result in x claims?

Furthermore, this ruling shows that the ACA Advisory Service do not have the scientific expertise to give correct advice regarding claims.

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