ASA Ruling: Breast Assured – Breach

In a previous ruling, the ASA agreed with the complainant that this company could not prove that using Breast Assured will result, among other, in breasts becoming larger. The ASA ruling below was in response to a new complaint that the company continues to make unsubstantiated claims for this product. 

Note: This product may be nothing but a scam, but the ASA will not stop the product from being sold to consumers fooled by advertising into believing the product may help them – all the company has to do is to change the words so that it does not make claims, but sell the product, on they go! Is there a single product that can prove that using that product will result in breasts becoming larger? Not a single one!

Read how the ASA ruled . . . 

BREAST ASSURED/H A STEINMAN/14951

Ruling of the : ASA Directorate
In the matter between:
Dr Harris SteinmanComplainant(s)/Appellant(s)
Lifecode CCRespondent

27 May 2010

http://www.asasa.org.za/ResultDetail.aspx?Ruling=5150

On 27 April 2010 the complainant lodged a breach allegation against the respondent’s website, www.breastassured.co.za. It was submitted that the respondent’s website was still making unsubstantiated claims. The complainant highlighted the following:
 

  • “The main ingredients has been used and researched in Thailand for many years with good results. You gently massage the active ingredients directly on the areas you want results. The Breast Assured Cream helps to firm, and reduce stretch marks, while gentle massage tones the breast muscle”.
     
  • “Many healthcare providers recommend this method before considering surgery. The formula for Breast Assured™ contains 9 natural nutrients and is based on years of herbal research”.
     
  • “My boobs were sagging and limp after breast-feeding two children. After two months on Breast Assured they were defying gravity and filling all that skin”, which he argued suggests the product works when there is no proof. The complainant submitted that this could be a complete fabrication or “regression to the mean” effect.

The complainant also again took issue with the information appearing under the heading “Extracts From Breast Enlargement Magazine”.

RELEVANT CLAUSES 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 again argued the merits of the matter and added that it would get professional advice, in terms of the application of the Code and the HPASA, to get more clarity on the position of natural products.

It submitted that it would remove the claim, “The main ingredients has been used and researched in Thailand for many years with good results”, though this is a fact. The statement, “The Breast Assured Cream helps to firm, and reduce stretch marks, while gentle massage tones the breast muscle” is based on research from the ingredients Kigelia and Baobab. Documentation was attached in support of both ingredients.

The respondent submitted that it undertakes to go through the whole website with the help of expert advice to make sure it complies with the ASA Code. It thanked the ASA and the complainant for allowing it time to go through this process and it was certainly not its intention to mislead the public.

ASA DIRECTORATE RULING

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

Procedural issues

The ASA has a specific procedure to follow whenever a matter is to be decided on. This procedure is outlined in the Procedural Guide of the Code, which forms an integral aspect thereof.

The complaint at hand was submitted as a breach allegation. The complainant submitted that “It appears that this product continues to make unsubstantiated claims on the website…”. He also lists several of the claims which formed part of his original complaint.

Given this, the Directorate considered only whether or not the respondent is in breach of the previous ruling, and only asked for comment in this regard.

It is not clear why, despite the Directorate’s specific advice that it would not consider material under the heading “Extracts From Breast Enlargement Magazine”, the complainant again took issue with this material.

The Directorate emphasises again that it does not currently regard this material as advertising, but as editorial, which it has no jurisdiction over.

In addition, it appears that the complainant also intends to further his original complaint insofar as it relates to the testimonials used on the website. The previous ruling specifically excluded this aspect of the complaint on the basis that “No explanation was provided as to why these testimonials may not be used”.

The complainant now motivates his objection by alleging that these testimonials are probably fabricated or at best a “regression to the mean”. No further explanation is given.

This is also improper, and the complainant should have lodged a new complaint on this particular issue, not include it as part of a breach allegation.

Accordingly, the Directorate will not consider this aspect at this time. Should the complainant wish to further this specific issue, he may lodge a new complaint on this aspect, which the respondent will then be asked to answer.

Finally, the Directorate notes that the respondent submitted additional supporting documentation for some of the claims objected to by the complainant and for the general efficacy of its product.

Hereto, the Directorate is not able to consider this material at this time. The Code specifically caters for situations where an advertiser wishes to submit new substantiation (refer Clause 4.1.7 of Section II). It is not proper for the respondent to submit additional substantiation in response to a breach allegation.

In any event, the previous ruling remains binding and has not been appealed by either party. As such, the respondent was compelled to comply and have the claims originally complained of withdrawn or amended as it undertook to do. Even if it believed that the new substantiation would suffice, it should have waited for the Directorate to consider this new evidence in accordance with proper procedure.

While not a factor at this time, given the above explanation, the Directorate again quotes from the previous ruling in this matter:

“The respondent is also cautioned that the ASA does not accept anecdotal evidence, or ingredient-based substantiation irrespective of whether ingredient-based claims are made.

What the Code requires is independent verification from a credible expert in the relevant field to confirm that the claims made are adequately supported by acceptable scientific data and apply to the product as a whole, when used as recommended”.
The respondent should keep this in mind in the event that it submits new substantiation.

In light of the above, the Directorate will not, at this time, consider the new substantiation submitted by the respondent for its efficacy claims. Should the respondent wish for the new substantiation to be considered, it should submit a formal request for this in accordance with Clause 4.1.7 of Section II of the Code.

Efficacy claims

The complainant’s core complaint originally related to the direct or implied claims that this product would increase female breast size, which he argued was not substantiated.

When comparing the original version of the website to the current version, the Directorate is satisfied that the overall communication is still that the respondent’s product would increase breast sizes. This implication or expectation has not yet been substantiated. Clearly, the respondent’s advertising is in breach of the original ruling as it did not remove or amend the claims in a manner that adequately addressed the complaint.

In addition, the Directorate notes that some of the claims originally objected to, such as the ones below have seen nearly no change. The original claims read:
 

  • “…The main ingredient has been used and researched in Thailand for many years with good results. The active ingredients go directly to the desired enlargement areas via our advanced micro-abrasive transdermal delivery system, thus delivering more effective and faster results. The Breast Assured Cream helps firm, fulls out the breast size and shape, while helping tone breast muscle and reduce stretch marks…”, and
     
  • “… many doctors are currently recommending this method rather than surgery …”

    The current claims appearing on the respondent’s website read as follows:
     

  • “… The main ingredient has been used and researched in Thailand for many years with good results. You gently massage the active ingredients directly on the areas you want results. The Breast Assured Cream helps to firm, and reduce stretch marks, while the gentle massage tones the breast muscle…”, and
     
  • “… Many healthcare providers recommend this method before considering surgery…”.

Given the overall similar communication and, in some instances, nearly identical claims, the respondent’s website is in breach of the original ruling and therefore in contravention of Clause 15 of the Procedural Guide.

Under ordinary circumstances, the Directorate would consider imposing sanctions on the respondent for this breach. It is noted, however, that this is the first breach allegation received on this issue and the respondent has no history with the ASA. This does not ex facie indicate a deliberate disregard for the previous ruling.

In addition, the respondent confirmed that it will seek professional advice in terms of the application of the ASA Code.

Accordingly, the Directorate will not impose a sanction on the respondent at this time. The respondent is cautioned, however, that this ruling as well as all previous rulings may be taken into consideration if any further valid complaints against its advertising are received.

The breach allegation upheld

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