ASA Ruling: Breast Assured

This company continues to advertise and make claims that this product can result in increasing the size of a woman's breasts.

Let us not mince words: this product is nonsense – you are wasting your money on this product.

Here is an ASA ruling (again) against this company.

 

Breast Assured / HA Steinman / 16523

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

09 Feb 2011

http://www.asasa.org.za/ResultDetail.aspx?Ruling=5439

Dr Steinman lodged a consumer complaint against advertising appearing on the respondent’s website www.breastassured.co.za. In particular he took issue with the following claims:

On the homepage:
 

  • “… a company run by women with products developed by women …”
  • “Bigger breasts make them feel more confident. But padded bra’s and push-ups are not a solution”
  • “The Breast Assured™ Cream is a blend of herbs and nutrients that help promote beautiful breasts. Gently massage the Breast AssuredTM Cream to help firm, and reduce stretch marks”.

On the “Product Info” page:
 

  • “Breast assured is an all-natural herbal dietary supplement”
  • “What you might feel:
    o Tingling in breast
    o Tightening and firming
    o Tenderness”

    On the “New Products” page:
     

  • “Kigelia: … The Lebou of Green Cap matrons frequently use the pulp of the ripe fruits as decocte per os (extract orally) and as friction on the young women’s breast in order to endow them with well-developed bust [2]”.

The website also has a “Testimonials page that features testimonials by several women.

COMPLAINT
In essence, the complainant took issue with the above claims on the basis that they convey the message that the product can increase breast size or firm breasts and reduce stretch marks. There is, however, no scientific evidence for any such claims.

Similarly, the claim that this product is an “all-natural herbal dietary supplement” is untrue, because some of the ingredients are used as therapeutic agents, and some are not classified as herbal supplements.

The complainant added that there is no proof that they product, a cream, is absorbed through the skin or has any effect on the underlying tissue. In addition, the anecdotal references to people using these ingredients for larger breasts are not adequate in terms of the ASA’s requirements.

Finally, the complainant pointed out that some of the testimonials used on the respondent’s website were also used for its previous product formulation, which contained damiana. This leads the complainant to believe that many of the testimonials have been fabricated, and reaffirms that there is no unequivocal proof that the results claimed are actually as a result of using the respondent’s product.

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
• Section II, Clause 10 – Testimonials

RESPONSE
The respondent firstly pointed out that some of the pages objected to by the complainant may well have changed in the meantime, given that it is updating and amending its website regularly in relation to the complainant’s objections. It also referred the Directorate to disclaimers which appears on its “Contact Us” page. This reads:

“Statements regarding these products have not been evaluated by the US Food and Drug Administration (or any South African government agency or medical organization). These organizations do not evaluate or check herbal ingredients.
These products are not intended to diagnose, treat, cure or prevent any infection or disease. Consult with your physician for diagnosis or treatment. Use herbs as per instructions and always observe for any allergic reactions.

The information presented on this site is not offered with the intention of diagnosing any disease or condition or prescribing any treatment. It is accessible as information and for educational purposes only. The products are for use in the maintenance and promotion of good health in conjunction with the advice of a registered medical practitioner. Any perceived association with information presented on this website and with products sold on the website should not be construed as an indication of the products efficacy.

In the occurrence that any individual should use the information presented on this website without a registered medical practitioners approval, that individual will be diagnosing for him or herself.

No blame is assumed by the author, publisher or distributors of this information should the information be used in place of a registered medical practitioners services. No guarantees of any kind are made for the performance or effectiveness of the products mentioned on this website. In addition, this information is based exclusively on the traditional and historic use of a specified herb or on clinical trials that are normally not recognized by any South African government agency or medical organization.

This information has not been evaluated by the US Food and Drug Administration, or any South African government agency or medical organization, nor have the products undergone double-blind trial studies that are required before a particular product can substantiate making claims of any sort”.

The respondent also questioned the complainant’s bona fides and suggested that he is abusing the ASA for the gain of some unknown pharmaceutical interest.

It also submitted a response to each of the complainant’s objections, the relevant aspects of which will be dealt with in more detail below.

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

Preliminary issues
The respondent took issue with the complainant’s status and alleged that there is a distinct possibility that the complainant might be motivated by large pharmaceutical companies to lodge these complaints.

It has not, however, submitted any evidence of such, and the Directorate therefore has no reason to investigate this bald allegation at this time. Over the years the complainant’s status has come under attack on more than one occasion, and as of yet, the ASA has not seen any evidence to show that he is more than an activist.

As such, and in the absence of any evidence to the contrary, the Directorate will regard the complainant as falling within the definition of a “consumer complainant” as outlined in the Code.

Voluntary undertakings
The respondent submitted that it has removed the claim “The Lebou of Green Cap matrons frequently use the pulp of the ripe fruits as decocte per os (extract orally) and as friction on the young women’s breast in order to endow them with well-developed bust [2]” until it has had a response from the expert it is consulting on this issue.

It also clarified that it has removed the testimonials that were prior to the product formulation change.

Finally it added that it has corrected the grammatical error insofar as the claim “Breast assured is an all-natural herbal dietary supplement” is concerned.

The ASA has a long standing principle which holds that where an advertiser provides an unequivocal undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised, the undertaking is accepted without considering the merits of the matter.

While the respondent’s actions in removing these claims and testimonials appear to address the complainant’s concerns, the Directorate notes with some concern that the respondent has given similar undertakings in the past (refer Breast Assured / HA Steinman / 14951 (8 April 2010) for context). The respondent is cautioned that merely giving voluntary undertakings in an effort to put a complaint to bed is not generally regarded as acceptable. the Directorate also points out that the Procedural Guide expressly allows for such voluntary undertakings to be considered for the purpose of considering sanctions, should the need arise.

While the Directorate accepts the respondent’s current undertakings, it cautions the respondent to ensure that it does not exploit the Directorate’s leniency towards such undertakings in an inappropriate manner.

These undertakings are therefore considered on condition that the claims and testimonials in question are not used again in their current format in future.

Testimonials still in use
From the respondent’s comments, it appears that it is still relying on some testimonials to sell the product. It explained that it has a disclaimer on its website that specifically advise readers that the testimonials “…on this web site are the individual users experience and should not be interpreted as an indication of the kind of results you will get”. It added that it has the original emails from those that are used, but it is in the process of obtaining formal signed releases from those being used. It confirmed that this process is not complete.

Clause 10 of Section II specifically requires that testimonials should not be used in a manner that could mislead or otherwise contravene any of the principles in the Code. It also specifies that the advertiser should hold signed and dated copies of such testimonials.

The response clearly indicates that it does not currently have signed and dated copies of the relevant testimonials available.

As such, the testimonials on the respondent’s website are in breach of Clause 10 of Section II of the Code.

In light of the above, the respondent is required to:
 

  • withdraw the testimonials in their current format;
     
  • the process to withdraw the testimonials must be actioned with immediate effect on receipt of the ruling;
     
  • the withdrawal of the testimonials must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and
     
  • the testimonials may not be used again in its current format

The respondent’s attention is drawn to the provisions of Clause 15.5 of the Procedural Guide.

This aspect of the complaint is upheld.

The Directorate also specifically draws the respondent’s attention to Clause 10.3 of Section II, which states that “Testimonials should not contain any claims to efficacy which cannot justifiably be attributed to the use of the product, and any specific measurable results claimed should be fairly presented. Where ‘before’ and ‘after’ claims are made, they should be capable of substantiation, expressed and illustrated in such a way as to permit a fair comparison to be made”.

The Directorate has held on more than one occasion that when a testimonial creates the expectation of “if worked for them, it will work for you”, such claims require substantiation in relation to the respondent’s actual product (refer Organo Slim / A Blom / 16330 (16 November 2010) and Herbex Weight Loss / HA Steinman / 12944 (14 July 2009) for examples). In addition, the principle established is that the Directorate does not accept testimonials as proof of general efficacy claims.

Substantiation
Clause 4.1 of Section II requires advertisers to hold evidence or verification for all efficacy claims. It further stipulates that such evidence or verification shall either emanate from, or be evaluated by an independent and credible entity, who is “… an expert in the particular field to which the claims relate …”.

The complainant took issue with the fact that the respondent’s website infers that its product will deliver larger and firmer breasts, which has not been substantiated in any form.

Besides relying on various disclaimers it has put on its website, the respondent argued that any inference that its product would enlarge and/or firm and/or tighten the breasts is purely subjective, and cannot be in contravention of the Code.

The Directorate, however, adopting a reasonable and objective view when considering the respondent’s website, does not agree with this argument. The website contains phrases such as:
 

  • “Our mission … is to stop ladies feeling embarrassed about their small breasts. Women are nervous to show their breasts off … Bigger breasts make them feel more confident …”
  • “Gently massage the … Cream to help firm, and reduce stretch marks …”
  • “… If you could naturally stimulate these changes in the levels and concentrations of these hormones [cited as Estrogen, Progesterone, Prolactin, Human Growth Hormone and GF Compounds. GF Compounds], you could restimulate breast growth”
  • “Bigger breasts make them feel more confident. But padded bra’s and push-ups are not a solution”
  • “The Breast Assured™ Cream is a blend of herbs and nutrients that help promote beautiful breasts. Gently massage the Breast AssuredTM Cream to help firm, and reduce stretch marks”.
  • What you might feel:
    o Tingling in breast
    o Tightening and firming…”

The testimonials used are also packed with references to increased breast size and fuller and firmer breasts. Similarly, the information contained under the editorial content “Extract From Breast Enlargement Magazine” also deals extensively with the positive effects of having larger breasts.

The Directorate is cognisant of the fact that the aim of any commercial advertisement is to convince people to buy the product or utilise the service advertised. There can be no doubt that, looking at the respondent’s advertisement as a whole, the hypothetical reasonable person would interpret it to imply that the respondent’s product can deliver similar favourable results in terms of enlarging and/or firming female breasts.

No substantiation for such claims has been submitted.

The respondent’s advertising as complained of is in breach of Clause 4.1 of Section II of the Code.

In light of the above, the respondent is required to:
 

  • withdraw the advertising in its current format;
     
  • the process to withdraw the advertising must be actioned with immediate effect on receipt of the ruling;
     
  • the withdrawal of the advertising must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and
     
  • the advertising may not be used again in its current format

The respondent’s attention is drawn to the provisions of Clause 15.5 of the Procedural Guide.

This aspect of the complaint is upheld.

Finally, the complainant requested proof that the company is run by women and that the products were developed by women as claimed on the website.

The respondent argued that the complainant was being pedantic.

Besides the fact that the claim is clearly capable of substantiation as governed by Clause 4.1 of Section II of the Code, the Directorate also notes that the claim in question reads “Our mission as a company run by women with products developed by women, is to stop ladies feeling embarrassed by their small breasts”.

There is no doubt that this claim is intended to resonate with women who have concerns about their own breast size. As such, it is used as a marketing tool to create the impression that “the product was developed by someone who gets what I am going through”.

The request for substantiation is therefore not pedantic or, as the respondent puts it, “frivolous harassment”. Here too, the respondent submitted no evidence to verify that the claim is true.

Given this, the claim “…a company run by women with products developed by women …” is currently unsubstantiated and in breach of Clause 4.1 of Section II of the Code.

In light of the above, the respondent is required to:
 

  • withdraw the claim in its current format;
     
  • the process to withdraw the claim must be actioned with immediate effect on receipt of the ruling;
     
  • the withdrawal of the claim must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and
     
  • the claim may not be used again in its current format

The respondent’s attention is drawn to the provisions of Clause 15.5 of the Procedural Guide.

This aspect of the complaint is upheld.

Finally, as a cautionary note to the respondent, the Directorate notes that this is the third adverse ruling against the respondent in less than a year. The Directorate may well consider imposing sanctions as contemplated in Clause 14 of the Procedural Guide on the respondent in the event of further adverse decisions of any nature.

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